Patents

Included in the list of Congress’s enumerated powers in Article I, section 8, of the Constitution is the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Authors are typically granted a copyright, while inventors receive a patent.

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As intended in the Constitution, a patent is a grant made by the government giving an individual inventor or a business the exclusive right to make, use, and sell an invention for a term of years. Patents are issued for four general types of invention or discovery: machines, human-made products, compositions of matter, and processing methods, as well as for design and plants. Before June 8, 1995, a patent for an invention ran for a nonrenewable period of seventeen years from the date of issuance. Currently, however, the period is twenty years from the date of the application.

In a recent interview the director of biotechnology for the U.S. Patent and Trademark Office said: “Genes are complex organic molecules, and when you isolate and purify them from the chromosomes where they reside, they are eligible to be patented as chemical compounds.” Whatever the delegates to the Constitutional Convention of 1787 in Philadelphia may have debated about the patent clause, it is fairly certain that there were no discussions about the patentability of microorganisms or genetic material. (In Diamond v. Chakrabarty [1980], the Supreme Court held that live, genetically altered strains of microorganisms could be patented.) The Framers of the Constitution did have available for their review the English Statute of Monopolies (1623), which, while outlawing monopolies, made an exception for letters patent (another term for patent rights in Anglo-American law) of fourteen years’ duration to the “true and first inventors” of “new manufactures.”

James Madison explained in essay 43 of The Federalist (1787–88) (see Federalist Papers) that copyright was recognized under common law and that “the right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.” Several of the states already had procedures for granting patents to inventors. But, as Madison pointed out, “The States cannot separately make effectual provision for either of the cases [copyright or patents], and most of them have anticipated the decision of this point by laws passed at the instance of Congress.”

One of the framers of the Constitution was a renowned scientist and inventor himself— Benjamin Franklin (1706–90). His inventions and discoveries ranged from the lightning rod to bifocal glasses and the Franklin stove, still produced today. America’s free society would spawn many more great inventors who gave the world inventions such as the electric light, the telephone, and the airplane.

The first Congress enacted a patent law in 1790, which was revised in 1836 when the Patent Office was created. Supreme Court rulings in the cases Hotchkiss v. Greenwood (1850) and Funk Bros. Seed Co. v. Kalo Co . (1948) held that patents may be issued only for new and useful inventions and that the discovery of a law of nature cannot be patented. According to the Court in James v. Campbell (1881), the government gets no benefit from a patented invention without compensating the inventor, and under its ruling in Bonito Boats v. Thunder Craft Boats (1989), states may not prevent competitors from making or using anything that is ruled not eligible for a patent under federal law.

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