Article by Greg Reilly
The nature of the rights conferred by a U.S. patent is increasingly debated among scholars, industry stakeholders, and even United States Supreme Court Justices. The debate often focuses on labeling patent rights as private property rights or public regulatory tools. Commentators assume that the chosen label dictates the set of rights granted by the patent, with the divide being over the extent of government control and involvement, the amount of patent owner exclusivity and power, and the relevance of public interest considerations. Opponents of recent and proposed patent reforms increasingly contend that these reforms are illegitimate or unconstitutional because they are inconsistent with the long-standing treatment of patents as private property rights. This Article puts these contentions in context, showing that they mistake the familiar for the necessary. Before American patent rights came to have characteristics associated with traditional property rights in the middle of the nineteenth century, patent rights in the colonies and states before the Constitution and in the initial U.S. patent system shared characteristics with modern regulatory entitlements and benefits. There is no reason from the constitutional text, originalism, long-standing practice, or otherwise to limit Congress to the private property model of patent rights. Rather, whether to design patents with characteristics more akin to traditional property rights or regulatory entitlements and benefits, and whether to weaken or strengthen patent rights, is a policy question for Congress.
About the Author
Greg Reilly. Associate Professor of Law, Chicago-Kent College of Law.
Citation
95 Tul. L. Rev. 211 (2021)