On September 17, 1787, our Founders created the most powerful document ever written about self-governance, our U.S. Constitution, and established what was to become the greatest country on Earth.
Of course, for inventors (and authors), that day is another way of saying The Patent and Copyright Clause Day or Intellectual Property Clause Day.
Our Founders knew what they were doing. They had studied history. After a long and grueling War for Independence, they met once again in Philadelphia and debated and argued about what would be the correct course of action for a new country…one founded on the principle of freedom.
And, they made it a country founded on the ability for authors and inventors to be guaranteed “the exclusive Right to their respective Writings and Discoveries” for a limited time … opening the doors of creativity and invention to all.
They, of course, knew about the system in Great Britain. However, the way it was set up over there allowed only the richest to file for patents due to the cost of patent fees. They would alleviate that problem by making it so virtually anyone could file for a patent.
During the period of the Confederation, after independence had been achieved but before the adoption of our U.S. Constitution, the majority of states did have some type of laws or regulations regarding patents.
It was, however, noted by the “Father of the Constitution,” James Madison, in Federalist 43, “The copy right of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. The public good fully coincides in both cases, with the claims of individuals. The states cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of congress.”
Thus, when Madison drafted the Constitution, responsibility for providing such protection was entrusted to Congress. As well, he and George Washington, our first president and a staunch supporter of patent rights, crafted the following words together to achieve their purpose, “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The clause, which is number 8 in Article I Section 8: Powers of Congress, reads, in full, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Again, noting the importance our Founders placed on Intellectual Property, The Patent Act of 1790 (1 Stat. 109) was enacted on April 10, 1790, about one year after our U.S. Constitution was ratified. The Act granted the applicant “the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery.”
The law was concise, defining the subject matter of a U.S. Patent as “any useful art, manufacture, engine, machine, or device, or any improvement there on not before known or used.”
Patent Board members, aka the “Commissioners for the Promotion of Useful Arts”, were given the authority to grant or refuse a patent after deciding if the invention or discovery was “sufficiently useful and important.” The first board members included Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph.
It was Washington’s belief that strong Intellectual Property law would be a main driving force behind our new country becoming economically independent. He may not have dreamed, however, that the fledgling country would become the most dominant country on the planet, in large part due to the creations and inventions of her people and their right to own that property.
Having this particular right in our Constitution proper did exactly what Washington, Madison and other Founders had hoped and, later, what President Abraham Lincoln described, when he said, “The Patent System added the fuel of interest to the fire of genius.”
Because of our U.S. Constitution, and especially Clause 8, America became the country where anyone from any walk of life who had a better idea, who could “build a better mousetrap,” could own the inventions he or she created and patented and achieve the American Dream.
Therefore, it is more than fitting to celebrate this day, the day when creativity and invention were unleashed in America.
It will be more fitting, however, when Congress, charged with promoting the Progress of Science and useful Arts, eliminates any legislation that allows others to easily take away the property rights of inventors, as has been occurring on a regular basis under the America Invents Act of 2011.
For the sake of our country, we must get back to the system our Founders set up and expected us to keep intact when they placed the word right only once in our U.S. Constitution, …securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.