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The (Constitutional) Convention on IP: A New Reading

60 Pages Posted: 14 Nov 2009 Last revised: 21 Sep 2011

Dotan Oliar

University of Virginia School of Law

Date Written: November 3, 2009

Abstract

All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that hitherto neglected portions of the Framers’ debates are relevant to interpreting it. Its findings shed light on four unsettled questions of constitutional interpretation: they provide qualified support for the constitutionality of business method patents, patents for products of nature, and copyright protection for unoriginal factual compilations, and suggest that the IP Clause should be read as one unit rather than two distinct and independent powers for copyrights and patents.

Keywords: intellectual property clause, constitutional law, intellectual property law, hypothesis testing

JEL Classification: C12, D23, K11, O34

Suggested Citation

Oliar, Dotan, The (Constitutional) Convention on IP: A New Reading (November 3, 2009). UCLA Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1499565

Dotan Oliar (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3219 (Phone)

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