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The Constitutional Protection of Intellectual Property

Adam Mossoff

Intellectual property has been a key part of American exceptionalism—the unique commitment in our political and legal institutions to natural rights and the rule of law as secured by a government of limited powers.1

When the Framers authorized Congress to secure patents and copyrights in the United States Constitution, it was unprecedented. No country’s founding document had done this before. As other intellectual property rights—such as trademarks and trade secrets—evolved in the 19th century, they too were secured by the unique American approach to securing all property rights in legal institutions governed by the rule of law.2

The First Congress immediately enacted the first patent and copyright laws in 1790. As these and subsequent statutes were interpreted and enforced by the courts, innovators and creators were provided reliable and effective property rights in the fruits of their productive labors. These intellectual property rights spurred the explosive growth in the U.S. innovation economy from the 19th century through today.3 By the end of the 19th century, U.S. institutions and legal rules securing patents as property rights in technological innovations had become the “gold standard” for the rest of the world.4

These intellectual property rights and their well-established protection under the Constitution have become controversial in recent years. Although the Supreme Court of the United States has consistently identified intellectual property rights as “property” under the Due Process Clauses and the Takings Clause in numerous cases reaching back to the 19th century, lower federal courts today have become confused. Some have even denied this constitutional proposition.5

In the Supreme Court’s 2019 decision in Oil States v. Greene’s Energy, Justices Clarence Thomas and Neil Gorsuch took strongly opposing sides on the question of whether patents are private property rights to which courts apply the constitutional doctrines of the separation of powers and the Seventh Amendment’s guarantee of a trial by jury.6 Lawyers and commentators also contest whether intellectual property is secured as “property” under the Constitution—and sometimes the same conservative thought leader has taken up both sides of the debate.7 Professor Richard Epstein, a legal luminary, recently weighed in on the issue, arguing for the strong constitutional protection of intellectual property rights.8

This Legal Memorandum explains how intellectual property rights have long been secured as property rights under the Constitution. It first reviews the constitutional text and original public meaning of the Copyright and Patent Clause. It then details the numerous federal court decisions from the 19th century that have secured patents and other intellectual property rights as “property” under the Due Process and Takings Clauses of the Constitution. It concludes by identifying how the modern Supreme Court has consistently followed these precedents, even if it has occasionally forgotten them or not cited them directly.

Read the full paper at Heritage Foundation

1 See Stephen Haber, Innovation, Not Manna from Heaven (Hoover Institution, Sep. 15, 2020), https://www.hoover.org/research/innovation-not-manna-heaven.
2 See Adam Mossoff, Trademark as a Property Right, 107 Kentucky L. J. 1 (2019).
3 See generally Jonathan M. Barnett, Innovators, Firms, and Markets: The Organizational Logic of Intellectual Property (Oxford University Press, 2020); Stephen Haber, Patents and the Wealth of Nations, 23 George Mason L. Rev. 811 (2016); B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920 (Cambridge University Press, 2005).
4 See Adam Mossoff, Institutional Design in Patent Law: Private Property Rights or Regulatory Entitlements, 92 So. Cal. L. Rev. 921, 936–37 (2019).
5 See Christy v. United States, 141 Fed. Cl. 641, 658–59 (2019) (holding that Congress has not provided for protection of patents under the Takings Clause), aff’d, 971 F.3d 1332 (Fed. Cir. 2020).
6 Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365 (2018).
7 Compare Paul Clement, Viet Dinh & Jeffrey Harris, The Constitutional and Historical Foundations of Copyright Protection (Center for Individual Freedom, 2012), https://cfif.org/v/images/pdfs/constitutional-and-historical-foundations-of-copyright-protection.pdf (“[I]t is well-established that copyrights and patents—like real property and chattels—are ‘property right[s] protected by the due process and just compensation clauses of the Constitution.’” (quoting Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983)) with Paul Clement, Patent Rights vs. Property: The Framers’ Understanding of Patents (High Tech Inventors Alliance, 2019), https://static.wixstatic.com/ugd/a0a494_53e5dd5e9ccd42899ffe45ec608f6b80.pdf (stating that “a patent is a form of government regulation”).
8 See Richard A. Epstein, The Framers Protection of Strong Property Rights Under the Patent Clause, Case Western L. Rev. (forthcoming 2021).

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