Patents as Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause

36 Pages Posted: 16 Aug 2006

See all articles by Adam Mossoff

Adam Mossoff

George Mason University - Antonin Scalia Law School


Conventional wisdom maintains that early courts never secured patents as constitutional private property under the Takings Clause. In examining long-forgotten judicial opinions and legislative records, this Article reveals that this is a profoundly mistaken historical claim. Nineteenth-century courts, securing to inventors the fruits of their labors, enthusiastically applied the Takings Clause to patents. It is striking that this historical development in both constitutional law and patent law has become obscured to modern courts and scholars. This Article thus concludes with a possible answer to this conundrum, drawing upon the intellectual history of property theory. Ultimately, the eclipse of the nineteenth-century patent takings jurisprudence may be an unintended consequence of the legal realists' radical transformation of property theory at the turn of the last century.

This intellectual history is important because it exposes the pervasive misunderstanding of the history concerning two significant constitutional provisions - the Takings Clause and the Copyright and Patent Clause. Courts and scholars can no longer rely on the conventional wisdom to conclude that patents are not protected under the Takings Clause, or that this issue is novel and uncertain. Doctrinally, this Article also uncovers a venerable jurisprudence grappling with constitutional limits on the government pirating patented inventions, which is settled law that courts would use in regulatory takings analyses today. As patented drugs and other inventions are increasingly the subject of regulations, this Essay establishes that the constitutional and policy issues inherent in these governmental actions are not new. Courts have long embraced patents as constitutional private property.

Keywords: patents, takings, fifth amendment, constitutional law, intellectual property, legal history

Suggested Citation

Mossoff, Adam, Patents as Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause. Boston University Law Review, Vol. 87, p. 689, 2007, Michigan State University Legal Studies Research Paper No. 04-02 , Available at SSRN:

Adam Mossoff (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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