Property or Privilege?

There has been a debate among legal scholars about whether patents were seen by the framers of the US Constitution as “property” or, as Thomas Jefferson charged, a monopoly “privilege.” For instance, Adam Mossoff has argued that the case law of the early nineteenth century shows that judges treated patents as an expansive property right.

But one thing is clear and is often forgotten: the early patent system lacked basic institutional features necessary for an effective property system. For example, it was very difficult to find out what had already been patented, aside from actually infringing a patent and then receiving a complaint from the patent owner. That is, the basic “notice” function of property was largely missing.

Rufus PorterIn 1845, Rufus Porter, an itinerant mural painter and sometime inventor from western Maine, began Scientific American as a publication that summarized new inventions. In 1846, he sold it to Munn and Company, the largest patent agent, and they began systematic reporting on new patents. Prior to the 1840s, occasional Annual Reports from the Patent Office would list granted patents, but little detail on claims and no drawings were available to the public without visiting the Patent Office in Washington (or corresponding with a patent agent, also time-consuming and imperfect). In 1843, the Annual Report included claims of the patents granted. In 1854, the Annual Report first included selected patent drawings. Only with the Act of 1870 (and the advance of lithographic printing) was the Patent Office required to provide copies to the public, including libraries. At that time the Official Gazette replaced the Annual Reports.

A similar pattern seems to have played out in Britain, where the first complete index of patents was published in the Abridgements of Specifications in 1853.

Thus, however much judges might have viewed patents as a form of property, it seems that the role of patents to function as an effective property system was significantly compromised during the first half of the nineteenth century.

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