IP rights within the context of American constitutionalism.

There are currently two patent reform bills circulating in the House and the Senate, The Innovation Act and PATENT Act, respectively. The Protecting American Talent and Entrepreneurship Act (the PATENT Act, S. 1137), introduced by Senator Chuck Grassley, represents Congress’ most recent attempt at patent reform. According to the drafters, the PATENT Act and its counterpart in the House, the Innovation Act, H.R. 9, purport to stop abusive patent litigation practices and prevent “bad actors” from undermining the patent system.

Patent law protects inventions and some kinds of discoveries and services manufactured or supplied by particular firms, commercially valuable information, etc that companies attempt to conceal from their competitors, are the fortunes of many businesses now that depend heavily on intellectual-property rights and the economic and cultural importance of this collection of rules is increasing rapidly. Within the past few decades, the economic value of trademarks and other intellectual property (IP) has skyrocketed in comparison to traditional tangible assets.

The term “intellectual property” refers to a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia. Successful innovation requires a great deal more. At a minimum it requires: A basis for long-term contracts. Such contracts in turn require, the rule of law, by then returns on innovation may star to grow.

Copyrights and patents are expressly included in the U.S. Constitution, the supreme law of the land.

As the Article I, Section 8 IP Clause states, Congress has the 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.” Copyrights and patents are therefore unique types of property that the Constitution designates for protection.

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The first patent laws in the United States were enacted in 1790 by President Georgeimage Washington and constitute the basis of the US patent system. The statute was titled “An Act to Promote the Progress of Useful Arts” and is significant for pioneering, in the United States, the conferment by law of rights of inventors to their creations. It established a Patent Board, whose members were given absolute authority to grant a patent.

As discussed in this book: The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective Paperback – September 9, 2015 by Randolph J. May,  Seth L. Cooper, the copyright alliance shaped the Constitution’s Intellectual Property Clause. The alliance between Noah Webster—“The Father of Copyright”—and James Madison—“The Father of the Constitution”— These foundations should never be forgotten, even as Congress confronts novel issues arising from the digital revolutionexplore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it imageexplains how these concepts informed the further development of IP rights from the First Congress through Reconstruction.

The essays address the contributions of figures such as John Locke, George Washington (presidet in office at the time of first patent Law), James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism.

The founding fathers understood the importance and sanctity of property rights. So much so, that the constitution directly protects this right in Article 1, Section 8. Article I, Section 8 of the U.S. Constitution gives Congress express authority to grant authors and inventors exclusive rights to their creations. Section 8 also gives Congress the power to regulate interstate and foreign commerce, providing further support for its right to legislate in this area.

American constitutionalism supplies the basic conditions for America’s unique conception of the rule of law – designed to ensure the protection of life, liberty, and property. Intellectual property is a form of property expressly provided for under the Constitution. In theory and in practice, intellectual property is readily conformable to the key components of the rule of law and American constitutionalism, such as according due process and equal protection and protecting vested rights.

When IP’s critics argue otherwise, including some who otherwise consider themselves respectful of private property rights, they disregard or misunderstand fundamental elements of American constitutionalism and the rule of law. Typically, the rule of law is characterized in terms of its basic precepts. That is, the rule of law is:

  1. a system of binding rules;
  2.  of sufficient clarity, predictability, and equal applicability;
  3. adopted by a valid governing authority; and
  4. applied by an independent authority.

America’s distinctive contributions to the concept of the rule of law emerged amidst the American Revolution. These contributions found practical application in early state constitutions, such as the Massachusetts Constitution of 1780. Late 18th Century American political writers, including the authors of the Federalist Papers also explored rule of law implications flowing from a constitutional republican form of government. And many of those early American insights supplied a critical part of the U.S. Constitution’s political backdrop.

For their part, the authors of the Federalist Papers described the extent to which the U.S. Constitution embodied these rule of law implications and constitutional principles, namely: necessity of a written constitution, separation of powers, federalism, representative elections, and an independent judiciary. Perhaps the best summation of these principles appears in a passage from Federalist No. 12:

The science of politics, … like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries or have made their principal progress toward perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.

These key components of American constitutionalism are also applied in light of the classical liberal conception of the basic purpose of government: protecting individual rights of person and property according to equal justice under law.

Despite worsening relations, those who say American politics is gritlocket are not looking in the right places. Perhaps the most unique contribution the people of the United States have made to political science and public law is the doctrine of judicial supremacy, as enunciated particularly by the Federal Supreme Court. After all, it is important to know that the Constitution clearly places the Supreme Court at the head of the federal judicial system in America.

See also at HG.org on related intellectual property legal cases.


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