Brief of Amicus Curiae Professor Lorianne Updike Toler in Support of Neither Party

Abstract

The Patent and Copyright Clause in the Constitution was designed to stimulate the economy by promoting “the Progress of Science and useful Arts,” and was also limited to that purpose. Insofar as the economy was not stimulated and promoted in the United States, the Clause had a limit. Thus the Patent and Copyright Clause was not thought to be absolute by its Framers, and was bounded geographically, temporally, and to those inventions that were useful. Under the Fifth Amendment, both the Takings and Due Process Clauses protecting property derived from the Magna Carta of 1215. Since this time, the Takings Clause was historically understood to cover the taking of financial property and the government taking could be regulatory in nature. Likewise, procedural Due Process under the Fifth Amendment has traditionally required notice and a pre-deprivation hearing, even when observed in the breach.

Keywords: patent law

JEL Classification: k10