The Lost 'Art' of the Patent System

83 Pages Posted: 26 Sep 2015

See all articles by Seán M. O'Connor

Seán M. O'Connor

George Mason University - Antonin Scalia Law School

Date Written: August 25, 2015


Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause. Only later, in the Industrial Revolution, did "science" and "technology" begin to displace "art" as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of "technology" itself as science-based innovation in artisanal and mechanized production. The loss of an "art"-based concept of the patent system is arguably causing some of the confusion over the proper scope and nature of the patent system, especially with regard to upstream patenting. I argue that this loss is leading to over- and underinclusive senses of patent eligible subject matter as well as amnesia as to the long-standing importance of method patents. I offer suggestions on how to reorient the patent system back to a focus on (useful) "art."

Keywords: patents, intellectual property, Constitution, art, science, technology, Europe, United States, Renaissance, Enlightenment, Industrial Revolution, ars, techne, Western cultural history, legal history

Suggested Citation

O'Connor, Seán M., The Lost 'Art' of the Patent System (August 25, 2015). University of Illinois Law Review, Vol. 2015, No. 4, pp. 1397-1478, 2015, University of Washington School of Law Research Paper No. 2015-33, Available at SSRN:

Seán M. O'Connor (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics