The (Constitutional) Convention on IP: A New Reading
60 Pages Posted: 14 Nov 2009 Last revised: 21 Sep 2011
Date Written: November 3, 2009
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: Suggested Citation