The Treaty Power and the Patent Clause: Are There Limits on the United States' Ability to Harmonize?

42 Pages Posted: 14 Nov 2010

Date Written: December 1, 2003


The latter part of the twentieth century saw considerable efforts at the harmonization of international intellectual property laws through international agreements such as the North American Free Trade Agreement and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). Efforts at harmonizing international intellectual property laws are nothing new, however. Countries have been attempting to harmonize their laws since the nineteenth century. Increasingly, the United States has altered its intellectual property laws in order to comport with international standards. All of these treaties and agreements retain a key feature of intellectual property: the rights afforded are territorial in nature. At this time, any intellectual property rights within the United States are products of national law, and their geographic scope generally is limited to within the United States.

The ability of the United States federal government to make law is not unlimited, even with respect to intellectual property. The U.S. federal government is one of limited powers, as enumerated by the Constitution. In the context of international patent harmonization, therefore, the ability of the U.S. to harmonize necessarily implicates the enumerated powers of the federal government. The constitutional provisions most relevant to harmonization efforts are the Patent and Copyright Clause and the Treaty Power. The Patent and Copyright Clause is found in Section 8 of Article I of the U.S. Constitution. Article I governs the structure of, powers granted to, and limitations on the U.S. Congress. Clause 8 of section 8 specifically grants Congress the power "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."

The Treaty Power is found in Article II, which defines the scope of the executive branch of the federal government. Specifically, section 2 of Article II affords the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Other than the requirement for concurrence by a supermajority of the Senate, there is no express limitation on the President's power under the Treaty Power.

The question remains, though, as to whether the limitations of the Patent Clause constrain the ability of the federal government to act pursuant to the Treaty Power. In other words, could Congress, under the auspices of a treaty, pass an intellectual property law that contravenes the limitations of the Patent Clause, such as affording a patent of infinite duration? Recent scholarship analyzing such constitutional conflicts generally has focused on these two clauses in isolation. With respect to the Patent Clause, professors Sherry and Heald have analyzed whether any perceived limitations in the Patent Clause transcend that clause and limit Congress' powers elsewhere, such as under the Commerce Clause. The potential conflict between co-equal powers of Congress could be viewed as horizontal conflicts. Similarly, a healthy debate has developed over the scope of the Treaty Power vis-à-vis the Commerce Clause and the rights of the states in a federal system, which is more of a vertical conflict. Little scholarship, however, has rigorously addressed the potential for horizontal conflicts between the Patent Clause and the Treaty Power. Nor have the courts expressly addressed this issue.

This Article addresses this omission, paying attention to the implications for international patent harmonization. This Article concludes that, under the current regime of nationally-based patent rights, the Patent Clause does limit the authority of Congress to harmonize U.S. law with international standards. If harmonization evolves into supranational patent rights, however, then the Patent Clause would no longer eclipse the authority of the Treaty Power. Such a result is possible because, in a supranational regime, the source of granting authority for the exclusive rights is no longer the U.S. federal government, but rather the international agreement itself.

Keywords: intellectual property clause, patent clause, copyright clause, Eldred, treaty power, commerce clause, patent, harmonization, constitutional limits

Suggested Citation

Holbrook, Timothy Richard, The Treaty Power and the Patent Clause: Are There Limits on the United States' Ability to Harmonize? (December 1, 2003). Cardozo Arts & Entertainment Law Journal, Vol. 22, No. 1, 2004. Available at SSRN:

Timothy Richard Holbrook (Contact Author)

Emory University ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-0353 (Phone)

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