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Supreme Court on Jefferson’s Views on Patents

From the Supreme Court case Graham v. John Deere Co. (1966):

[Jefferson believed] [t]he patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society—at odds with the inherent free nature of disclosed ideas—and was not to be freely given.

While Jefferson’s earlier views favored patents (“the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression”),

His views ripened, however, and in another letter to Madison (Aug. 1789) after the drafting of the Bill of Rights, Jefferson stated that he would have been pleased by an express provision in this form:

“Art. 9. Monopolies may be allowed to persons for their own productions in literature & their own inventions in the arts, for a term not exceeding – years but for no longer term & no other purpose.” Id., at 113.

Too bad this language did not make it into the Constitution. This would have capped the copyright term to some finite number, so that Disney could not have it extended all the way to over 100 years now.

{ 4 comments… add one }
  • Crosbie Fitch September 13, 2011, 5:17 pm

    It should not be surprising that Madison declined Jefferson’s suggestion.

    What is more interesting is whether Jefferson realised that monopolies would be more easily repealed if they were explicitly granted, rather than simply legislated in Madison’s astute hope that no-one would notice an absence of explicit constitutional sanction.

    • Stephan Kinsella September 13, 2011, 9:59 pm

      You lost me. What do you mean?

      • Crosbie Fitch September 14, 2011, 1:37 am

        Madison appears more pro-monopoly than Jefferson.

        Why wouldn’t Madison take up Jefferson’s suggestion to put an explicit grant of monopolies in the Bill of Rights?
        Madison (for whatever reason) decided it was unnecessary, that sanction to grant monopolies could be inferred from the ‘progress clause’.

        I suspect it was important to Madison to establish such an inference, as an explicit grant in the Bill of Rights would remove that inference. Moreover, an explicit grant of monopolies would bring focus on that grant as something able to be rescinded (as with temperance).

        I’m just wondering. if that is why Madison rejected Jefferson’s suggestion, as to whether Jefferson expected such a motive for its rejection, before he even proposed it.

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