Abstract

http://ssrn.com/abstract=585661
 
 

References (180)



 
 

Citations (5)



 


 



Constitutionalizing Patents: From Venice to Philadelphia


Craig Allen Nard


Case Western Reserve University - School of Law

Andrew P. Morriss


Texas A&M School of Law; PERC - Property and Environment Research Center; George Mason University - Mercatus Center


Review of Law & Economic, Vol. 2, No. 2, 2006
Case Legal Studies Research Paper No. 04-12

Abstract:     
Patent law today is a complex institution in most developed economies and the appropriate structure for patent law is hotly debated around the world. Despite their differences, one crucial feature is shared by the diverse patent systems of the industrialized world even before the recent trend toward harmonization: modern patent regimes include self-imposed restrictions of executive and legislative discretion, which we refer to as "constitutionalized" systems. Given the lucrative nature of patent monopolies, the long history of granting patents as a form of patronage, and the aggressive pursuit of patronage in most societies, the choice to confine patents within a legal framework that minimized the potential for gain by current office holders requires explanation. Why choose to constitutionalize patents?

This paper answers these questions by examining three salient constitutionalizng events through the lens of public choice theory. First, the ground breaking Venetian statute of 1474, the first modern patent system; second, the British experience with patents that led to the 1624 Statute of Monopolies, one of the key foundations of the U.S. patent system; and lastly, the American Founders' adoption of Article I, Section 8, Clause 8 of the Constitution, which grants the power to, and sets forth the manner in which, the national government can issue patents. We argue that creating constitutional patent law institutions offered the opportunity to both increase the durability of the bargain between the state and the inventor and, in some cases, to limit the grant of patents to those most likely to increase the general welfare.

Based on the historical analysis, we derive three desirable features for patent law institutions:

(1) strong constraints on the type of patents that can be issued, limiting them to areas in which there is evidence that the costs of the limits to competition imposed are justified by the benefits produced by the incentives created;

(2) an independent institution capable of reviewing the grant of a patent in a timely and final manner, to ensure the constitutional bargain is kept; and

(3) patents that provide their owners with a sense of security in the validity and scope of their property right, to maximize the value of the bargaining chip offered to inventors.

Our analysis thus offers lessons for countries considering new patent law institutions or modifying existing ones.

Number of Pages in PDF File: 100

Keywords: Intellectual Property, Patents, Constitutionalized System, Public Choice

JEL Classification: H11, K11, K40, O31, O34

working papers series


Download This Paper

Date posted: September 2, 2004 ; Last revised: December 4, 2007

Suggested Citation

Nard, Craig Allen and Morriss, Andrew P., Constitutionalizing Patents: From Venice to Philadelphia. Review of Law & Economic, Vol. 2, No. 2, 2006; Case Legal Studies Research Paper No. 04-12 . Available at SSRN: http://ssrn.com/abstract=585661 or http://dx.doi.org/10.2139/ssrn.585661

Contact Information

Craig Allen Nard (Contact Author)
Case Western Reserve University - School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-6348 (Phone)
216-368-2086 (Fax)
HOME PAGE: http://lawwww.cwru.edu/
Andrew P. Morriss
Texas A&M School of Law ( email )
1515 Commerce Street
Fort Worth, TX 76133
United States
PERC - Property and Environment Research Center ( email )
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States
George Mason University - Mercatus Center ( email )
3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States
Feedback to SSRN


Paper statistics
Abstract Views: 3,516
Downloads: 465
Download Rank: 32,983
References:  180
Citations:  5

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.343 seconds