Adam Mossoff has written an important paper shedding light on the nature and constitutional status of patents:
Mossoff, Adam, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context” . MSU Legal Studies Research Paper No. 03-21
Adam sheds light on what eighteenth and nineteenth century scholars meant by calling patents “privileges.” Lawyers of the day referred to many types of civil rights that helped secured property rights as “privileges.” “Privileges” was a legal term of art for rights that did not arise in a state of nature, but that arose when people joined together in societies under a social contract–civil rights. Referring to such rights as “privileges” was not intended at all to disparage them or disconnect them from property rights (as in the “privileges and immunities” clause). Thus he traces nineteenth century case law that treat patents as a form of property, subject to “trespass” and broadly defended.
Adam’s paper also drew my attention to two other problems, less related to IP, but none-the-less worth mentioning.
1) The sad neglect of legal history in the law schools, and the tendency of the legal system to pick up on and amplify errors in interpreting cases of the past. This has arisen again and again–with privacy law, with the Ninth Amendment, and on and on. In my view this arises originally from the fact that law was not an academic discipline like history. It was a trade. Law professors taught the trade, and did not much try to be “academic.” Objective historical research was not taken seriously, but only as an addendum to advocacy. Today law schools try to be on a intellectual par with graduate schools in philosophy and history and have little interest in trade problems, but objective research is taken no more seriously. If they want to produce scholarship of lasting and real value, they are going to have to up their standards. I should close by saying that there are important exceptions–true legal scholars–but not enough.
2) The second problem is something the tendency of ideological libertarians (including myself) to underestimate the sophistication of natural rights and social contract theory. It is often accepted by libertarians that rights that do not belong in a state of nature are simply problematic. And a good number of libertarians would dismiss such rights as impossible. But that will not do, because then we must dismiss things like the right to vote, the rights of due process, and so on, as impossible, because all these arise not in a state of nature but in civil society. We might well be cautioned about taking discussions of the “state of nature” too literally. Like “perfect competition” or “zero information costs” in economics, it makes a splendid thought experiment. But in reality the evolution of legal systems and societies is vastly more complex.
A longer version of this note is up on IPcentral, for those to whom it looks familiar.