Do Patents Belong in the Constitution?

In the United States, patent protection is a well-established constitutional right. But should this clause even be in the constitution? Does it advance liberty or undermine it?

Article I, Section 8 of the United States Constitution reads in part: “Congress shall have 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.”

It is important for libertarians — including those who support patents — to take a closer look at the actual text of this clause, along with the original justifications for its inclusion, and consider their impact on our efforts to achieve a free society.

From a small-government libertarian point of view, a constitution lays out the structure and function of a government whose mission is to secure liberty for people under its jurisdiction. Ideally, a constitution should not address activities unrelated to this primary mission, such as promoting any economic, political, or social outcome.

Most property rights as we know them today were recognized as common law rights at the time the constitution was being debated, but patents for original inventions were not.

There are at least three reasons why placing the patent clause in the US Constitution failed to live up to this standard.

First, it created a “right” that was not recognized in the common law of the time, and in so doing it gave patents a privileged status above rights that had long been recognized and accepted.

Second, the patent clause justified this new “right” as a means of promoting “progress,” introducing a goal unrelated to its primary mission of protecting existing rights.

Finally, the patent clause violated a key purpose of a constitution in a free society — to set strict limits on the power of government. Instead, the patent clause gave a sweeping grant of power to the federal government, one that exceeded its power over every other form of property.

Is a constitution a proper place to create a right? By its very nature, a “right” that is brought into existence by a government, and whose extent and limits can be defined and modified at any time by that same government, cannot be a right as that term is understood by libertarians.

This may appear to be a trivial matter, but it’s not. Most property rights as we know them today were recognized as common law rights at the time the constitution was being debated, but patents for original inventions were not. This is why the founding fathers, who favored patents, considered it necessary to explicitly define a new patent “right” in the constitution itself.

Although common law no longer exists in the form that it did when the constitution was adopted, the privileged status of patent “rights” remains embedded in the US legal system. Patents grant a legal monopoly over the use of a specific design or process. This monopoly can be implemented only by forcibly preventing others from using their property in the same manner. The many shortcomings of today’s patent system — such as monopolistic pricing, costly and time-consuming litigation, and patent laws benefitting politically-connected corporations — can be traced back to the manner in which patent “rights” were set up in the constitution, giving the federal government unrestricted power to implement them in any manner it chose.

A “right” that is brought into existence by a government, and whose extent and limits can be defined and modified at any time by that same government, cannot be a right as that term is understood by libertarians.

The issue here is not whether inventors should be compensated for their efforts, beyond the compensation they would otherwise receive in the free marketplace. Even assuming that they should receive additional compensation, there still remains the question of whether government-granted monopolies should be placed in a nation’s constitution to achieve this goal, effectively foreclosing any other way of compensating inventors.

Aside from the “rights” established by this clause, no definition of property rights exists in the constitution. The founders evidently did not consider further definitions necessary, since such rights were already in place and generally recognized. The act of defining patent “rights”, and attempting to justify them within the constitution itself, shows that the framers considered patents a special case that set them apart from normal rights that a constitution was designed to protect. No attempt was made to set a clear boundary between patent “rights” and other rights, although it should have been obvious that conflicts would arise between the two.

Over the years, many Supreme Court rulings have reinforced the distinction between patents and traditional property rights. In Wheaton v. Peters (1834), the Court stated that “the word ‘secure,’ as used in the Constitution, could not mean the protection of an acknowledged legal right.” And in Crown v. Nye (1923), the Court observed that “patent property is the creature of statute law.”

In perhaps the clearest statement of the Supreme Court’s view (Gayler v. Wilder, 1850), the Court said:

Now the monopoly granted to the patentee is for one entire thing — it is the exclusive right of making, using, and vending to others to be used, the improvement he has invented, and for which the patent is granted. The monopoly did not exist at common law, and the rights, therefore, which may be exercised under it cannot be regulated by the rules of the common law. It is created by the act of Congress, and no rights can be acquired in it unless authorized by statute and in the manner the statute prescribes.

In making the above rulings, the Supreme Court was adhering both to the founders’ original intent and to the plain text of the constitution, which explicitly states that the “right” to a patent can only be created by legislative fiat.

How did the framers of the constitution justify this clause? The answer can be found in the sole reference to this constitutional provision in the Federalist Papers:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. 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. (Federalist 43)

The four sentences above, written by James Madison, form the entire moral and philosophical basis of the founders’ decision to place patent policy in the constitution.

This passage makes two things clear. The first is that patents were not recognized in British common law at the time the constitution was being debated and adopted. The second is that, from a libertarian point of view, this passage is riddled with massive flaws.

The many shortcomings of today’s patent system — such as monopolistic pricing, costly and time-consuming litigation, and patent laws benefitting politically-connected corporations — can be traced back to the constitution.

The alleged right to a “temporary” monopoly on the production and sale of a device did not — up to this point — enjoy the same legal status as well-established rights to other types of property. Madison — and the constitution — attempted to overcome this shortcoming by conflating patents with copyrights, even though there were fundamental differences between the two, and even though copyrights by then were clearly grounded in common law and patents were not. He claimed that a “right” to a temporary monopoly on useful inventions seemed to belong to the inventors, but presented no evidence to support his claim, treating this assertion as if it were self-evident.

What’s worse, Madison’s argument was explicitly utilitarian, as its first sentence makes clear. A large part of his justification was the supposed consistency of patents with the “public good,” a meaningless catchphrase which (then and now) has been invoked for numerous government activities that violate the liberty of those within its jurisdiction.

There was no discussion in the Federalist Papers of any possible downside of placing patent “rights” in the constitution, such as their potential for coming into conflict with the pre-existing property rights that the constitution was created to protect.

This set a dangerous precedent: if there is a “right” to a temporary monopoly that overrides existing rights in the name of “progress,” why shouldn’t there be a “right” to other benefits a government might choose to confer, such as food, shelter, a free college education, or free medical care? Today’s “progressives” have constructed an entire ideology around this supposedly legitimate function of government.

Promoting progress means encouraging a certain type of activity (in this case, inventing) and affording it a privileged status over and above other activities. Should the constitution empower the government to do this? If we concede that it is acceptable for the constitution to actively promote a specific type of activity, we undercut our own arguments against government promoting any other type of activity.

By now it should be clear that, despite its innocuous phrasing, this constitutional provision is fundamentally antilibertarian. It does not secure property, as that phrase is commonly understood; quite the opposite. The federal government can change the rules regarding “ownership” of patents whenever and however it pleases, as long as it meets the minimum requirement of awarding patents to “inventors” for “discoveries.” It’s true that patents can be awarded only for “limited times,” but this phrase is meaningless — all timeframes are limited. A billion years is a limit. There exists no objective standard for the length of time a patent should be granted and enforced, beyond the general idea of “utility.”

If there is a “right” to a temporary monopoly that overrides existing rights in the name of “progress,” why shouldn’t there be a “right” to other benefits a government might choose to confer?

Of course, none of these objections deal with the question of whether patents themselves are necessary, desirable, or morally justified. Libertarians who have given serious thought to this issue are divided into two camps. One camp opposes patents as an unacceptable infringement on liberty, while the other supports patents as a proper means of implementing intellectual property rights.

But in creating a “right” that can be enhanced, modified, or revoked by a simple stroke of the legislative pen, the patent clause does neither camp a favor. Even if patent rights are legitimate, the manner in which they are implemented in the constitution is not. Imagine if the right to own physical property were to depend upon the good will of the federal government. Imagine a clause in the constitution such as this:

Congress shall have power . . . to promote economic development, by securing to farmers, ranchers, homeowners, and business owners the exclusive right to their respective real estate holdings.

Would this clause render your property rights more secure or less secure than they are today? Would it give the federal government more control or less control over your property? The answer, of course, is that totally subordinating property rights to legislative edict would cause such rights to be much less secure, by making it nearly impossible to challenge any government attempts to modify or revoke them. This is the exact status of patent “rights” today.

To return to the original question: should the patent clause, in its present form, be in the United States Constitution? The answer is clearly no. This clause is not even remotely libertarian in its original justification, in the goals it espouses, and most especially in its sweeping grant of power to the federal government. Libertarians have no reason to support the patent clause as it exists today, and every reason to urge that it be replaced or repealed.