The Foundation of American Patent Law: The Constitution

To understand American Patent Law you need to be able to understand the US Constitution. Patent law is often seen as remote, tangential and unconcerning to the average American.
It’s not nearly as relevant to our daily lives compared to drinking and driving laws with penalties severe enough for people to seek drink driving lawyers. But it can touch on core values and beliefs that all Americans hold dear. Some consider the US Constitution, the document the US is founded upon, to be a liberal document that started out conservative, true to itself, but then was hacked to bits by liberal, left-leaning politicians who changed the true nature of its intent and meaning. The truth is the document itself was created to both resist and tolerate change. The same thing applies to State constitutions, or State laws and documents.

Now there are two different ways to look at the constitution, and you can the two opposing sides in the form of the American political spectrum today: From a classical perspective, or from a liberal classical perspective. The classical perspective takes everything more literally and true to its word. The liberal classical gives plenty of room for “improvement.” This perspective also applies to the economical implications of this document. In this way the term classical addresses and believes that the role of the private market should minimize the government’s ability to intervene in the economy. It is this question of role of government that leads to the need for American Patent Law, or the need for the American government to addresses the rights of inventions of products or services by the American people, for the American people.

The question of what the government’s role should be in the American economy is a big one, and the question upon which all patent law is based. This question is often framed this way: “Did the framers of the Constitution want the government to play an active role in the promotion of economic development?” Currently the government does. There is a big public budget. And this budget is rarely balanced. The government always overspends and this results in huge deficit spending. There are also so many government agencies now it’s hard to keep them all straight. With more government entities or agencies, there are also more government rules and therefore more influence over the American economy. The way the current politicians interpret the framers’ intentions appear to be classical liberal. They see one of the government’s duties is to play an active role in the promotion of economic development. So the answer to the question is a resounding yes.

But is this resounding yes valid? Many believe that the idea that the role of government should extend into the private sector is harmful for the economy. You see this come into question with political / private market issues today. The way the role of the US government currently comes into play with the economy is primarily through tax. There are tax exmemptions, tax benefits, a long list of tax rules and tax run-arounds. This has led to a heavy government influence upon the private entrepreneurship, which some say encourages infrastructre and technology and some say discourage it. If you are a constitutional classicist, you would say it discourages it. There is too much involvement by the government in the private economy. Why? Because there are rights that are already given to the populace prior to any government interference. The private marketplace itself will give it worth and will aide in its occurence, if there is a demand for it, with absolutely no government interference.

When the government tries to induce development too much, with a bunch of rules tacked on, by trying to name rights, benefits, or other complicated pre-reqs, the political cloud surrounding that intervention inevitably makes the decision-making problematic. This results in bias, bias that has been induced solely by the government intervention.

Patent law started mostly after the Civil War with liberty of contract in state courts. These procedures, laws and rulings then migrated to the federal courts, making what was the State’s decision a federal one. There were several main constitutional clauses that addressed the role of government in economic development and they were:

  1. The Commerce Clause
  2. The Contract Clause
  3. The Patent, or Intellectual Property Clause
  4. The Fifth Amendment (Clause 17)

Each of these has influenced the development of American Patent Law over the past century and a half. But the evolution of the patent law has depended upon the evolution of the federal and state court systems, and the country itself.  The now divisive state of the country, and the opposing view of classically interpreted Constitutional text. Vs. Liberal Classicism has also created a division within the minds of the judiciary over the role of government in the economy, or the private marketplace. How much influence should the government have over this domain? It’s a question that affects how any American votes. And it’s one to keep in mind in the next election.


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