James Madison, writing in the Federalist (43), discusses the Constitution’s patent clause. The discussion is brief, so here it is, with comments:
A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.
That’s the Constitutional clause. Here’s Madison’s comment:
”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.
In making this observation, Madison sets up inventions:
The right to useful inventions seems with equal reason to belong to the inventors.
Historically, patents were always granted by government, and those grants were based on favoritism, whim, expediency–pretty much anything but the fact that someone had invented and ought to have a government-sanctioned privilege for having done so. For instance, early patents were used by city states to lure away anyone willing and able to steal trade secrets of a guild in a rival city. One need not be the inventor–just good enough to be able to practice the craft and teach others how to practice the craft–ordinary skill in the art and all–in exchange for a patent monopoly. Restricting patents to inventors is significant.
In Madison’s discussion of the matter, inventors own their inventions until they decide to part with that ownership. An invention is a natural right, as it were. Federal patent law does not stipulate the initial ownership of inventions. It is concerned with the right to obtain a patent on an invention or discovery (35 USC 101):
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The patent system does not require an inventor to seek a patent or to use the patent system. Rather, inventors are provided the opportunity to do so, and are–in the general case–given broad freedom in how they exploit any patent they receive, short of antitrust violations and patent misuse, typically in connection with antitrust violations or fraud on the Patent Office. Notably, there’s no working requirement in U.S. patent law. An inventor ordinarily does not have to use or license a patented invention, nor must a patentee enforce a patent against infringers.
It’s important here to see what Madison has done. Patents were and still are a matter of government grant. But Madison equates inventions with common law rights. Thus, Congress is given the power to grant to an inventor a patent based on the inventor’s full description of the invention, rather than permitting just anyone to seek a patent based on, say, governmental preference or favoritism.
And here’s Madison’s kicker:
The public good fully coincides in both cases with the claims of individuals.
Madison joins public good and individual interests. One might think of Adam Smith’s “invisible hand” argument. Individuals, whether rich or poor, or selfish or not, end up sharing “life’s necessities.” Smith concludes: “And so without intending it, without knowing it, they advance the interests of the society as a whole.” That’s from 1759. Madison applies the argument to the patent system and the “claims of individuals.” The good of society, then, is advanced by individual inventors, however they choose to exploit their claims, selfishly or altruistically, diligently or indifferently.
Clearly, Madison does not make the argument that the public good might be better met by the claims of companies or governments to patents. Even Bayh-Dole does not make that claim–rather, Bayh-Dole implicitly argues that the claims of companies (even nonprofit companies, even state organizations) better advance the public interest than the claims of federal agencies. And in that implicit argument–made explicitly by the early advocates of Bayh-Dole–lies a great deal of strangeness, including the difference between claims made by companies and claims made by federal agencies. Left unaddressed, however, is the difference between claims made by individuals and claims made by organizations and governments alike–something Madison’s argument displaces. It is the claims of individuals that, taken together, advance the public interest. In Madison’s world of patents, there’s no place for a debate over which of organization or government control is better. Neither is.
Nor does Madison consider the special case of the federal government issuing patents to itself. One might think, however, that it is clear from Madison’s assertions that he did not include the federal government in the idea that the claims of individuals drive public benefit. That, in turn, leaves open the question of whether the federal government has any basis, under the Constitution and within the patent system, to enforce patents it issues to itself or acquires from others.
The Bayh-Dole Act, part of federal patent law, creates a working requirement in the patent system for inventions arising from federally supported research or development. In doing so, Bayh-Dole changes in significant ways the property rights that inventors have in such inventions. Federally supported inventions, after Bayh-Dole, are not ordinary inventions. They are, as it were, abby normal inventions, and patents on such inventions are also abby normal. Yes, you should have Gene Wilder’s reaction.