[From my Webnote series]
I observed in “Legislation and Law in a Free Society” (longer and updated version in Legal Foundations of a Free Society) various problems with using legislation to “make” law. For one thing, it requires a legislature, which requires a state. For another, it conceives of law as being “made” by human will rather than natural principles “found” by people seeking justice. One problem with IP law—mainly patent and copyright, but also trade secret and trademark, to varying degrees—is that it requires modern state legislation. It cannot be created without it.
I was working on lecture #4 for my Mises Academy course “Rethinking Intellectual Property: History, Theory, and Economics” [KOL175] and was compiling some of the key statutes, treaties, international bodies, and pending legislation and treaties that undergird modern patent, copyright, and other types of IP law. Just seeing it all in one place is striking; it cannot fail to make the libertarian advocate of IP a bit queasy, one would think.
I list some below with minimal commentary, and links.
Key IP Statutes and Treaties
Historical
- 1624: Statute of Monopolies 1623 (England): key patent statute
- 1710: Statute of Anne 1709 (England): key copyright statute
- 1691: South Carolina enacts first “general” patent law (as distinguished from authorization to the Crown to make patent grants). Note, this is still a specific legislative grant of monopoly rights to Peter Guerard for a rice-husking machine rather than a general statute establishing a patent system for future inventors. (See Fritz Machlup, An Economic Review of the Patent System (1958), 79-80, Part II.B. Grok note: Fritz Machlup credits South Carolina with the first “general” patent law in the colonies in 1691. However, the 1691 act was a specific grant to one person rather than a general statute. Modern historians generally regard South Carolina’s 1784 “Act for the Encouragement of Arts and Sciences” as the first true general patent statute in what became the United States.)
- 1784: South Carolina: “Modern legal historians generally regard South Carolina’s 1784 ‘Act for the Encouragement of Arts and Sciences’—which created a standing framework offering 14-year exclusive rights to inventors of useful machines—as the first true general patent statute in what became the United States.” (see previous item)
- Ad hoc patent grants in the US:
- Grok
-
Founders’ Design for Intellectual Property: Ad Hoc State Patent Grants & Congressional Private Bills
Source: Federalist Society “America 250” Webinar – “What Was the Founders’ Design for Intellectual Property?” (June 2026)
1. Pre-1789: Ad Hoc Private Patent Grants by State Legislatures
Before the U.S. Constitution and the federal Patent Act of 1790, there was no uniform national patent system. Patents were granted on a case-by-case basis through private bills passed by individual state legislatures (or colonial assemblies).
Professor Zvi Rosen explained this practice clearly:
“When I say private patents, I mean it was a private bill from [the] legislature granting a patent. So, there wasn’t a uniform state system. In some cases, like I know Oliver Evans got some patents from Delaware and it was not under a system. It was just the legislature said we grant this patent.”
-
Pre-1789 Ad Hoc Patent Grants by State Legislatures
Pre-1789 ad hoc/private patent grants by state (and colonial) legislatures were common in
