Our 19th Century Patent System

7 IP Theory Issue 2 Article 3 (2018)

21 Pages Posted: 11 Jul 2018

See all articles by Greg Reilly

Greg Reilly

IIT Chicago-Kent College of Law

Date Written: June 2, 2018


One’s view of the patent system depends on what perspective is taken. A narrow focus on the operational level of doctrinal implementation of patent law reveals significant instability and fluctuation in the patent system. A broader focus on the foundational and systemic characteristics of the patent system reveals such substantial stability for so long that the American patent system reasonably can be described as a 19th century patent system. And an even broader focus on the entire history of the American patent system reveals that this stability was only achieved after a period of significant change, diversity, and experimentation in the first few decades of the patent system. The result is a patent system disconnected in significant ways from the modern legal system but one that could be justified on the basis of stability, resilience, and the assumed wisdom of long-standing practice. At the same time, however, mistaking this long-standing practice and potential policy desirability for necessary, inherent, or mandatory features overlooks the instability, change, and diversity in the early decades of the American patent system.

Keywords: patent, intellectual property, IP, history of patent law, patent system, nature of patent rights, patent examination

Suggested Citation

Reilly, Greg, Our 19th Century Patent System (June 2, 2018). 7 IP Theory Issue 2 Article 3 (2018), Available at SSRN: https://ssrn.com/abstract=3199834 or http://dx.doi.org/10.2139/ssrn.3199834

Greg Reilly (Contact Author)

IIT Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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