State Patent Laws in the Age of Laissez-Faire
70 Pages Posted: 23 Aug 2012 Last revised: 13 Mar 2014
Date Written: September 1, 2012
This Article brings to light the heretofore unstudied views of esteemed nineteenth century jurists, including Chief Justice of the New York Supreme Court James Kent (1763–1847), that states have concurrent constitutional authority to grant their own patents alongside Congress in order to stimulate innovation and economic development in their own territories. Based on arguments surrounding the constitutional validity of New York’s infamous steamboat monopoly, this Article reveals that in the height of America’s supposed commitment to laissez faire economics, concurrent state patent powers were justified by a fundamental concern that Congress’s new and uniquely “hands-off” patent system was not a sufficient replacement for the active patent policies of state and colonial governments prior to adoption of the Constitution. Therefore, in the tradition of Alexander Hamilton — who tempered his vision of a strong central government with a recognition of the importance of autonomous state policymaking and his vision of a vibrant free market with a recognition that targeted government incentives are sometimes necessary to stimulate investment in beneficial activities — state patents were seen as an important policy tool for encouraging the private sector to invest in developing costly technology of unproven value that states deemed worthy of support.
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