WASHINGTON D.C. - Critics who claim that patents have always been special legal privileges are misguided, explains Adam Mossoff in "Reevaluating the Patent 'Privilege,'" a new paper released today by the Progress & Freedom Foundation's Center for the Study of Intellectual Property (IPcentral.info). In the paper, Mossoff explains that some legal scholars misinterpret the use of the term "privilege" as it was used in early years of the American Republic. The term referred to what we now call a civil right and was justified by natural rights philosophy. This explains why early American legislators and judges expanded and extended the property rights in patents.

In the paper, Mossoff, Associate Professor of Law at the Michigan State University College of Law and IPcentral Academic Advisory Council Member, explains that during the formative years of the United States, "a 'privilege' referred to several distinct types of legal rights secured to individuals in civil society." The drafters of early American state and federal constitutions, as well as the judges who formulated the legal doctrines in our common law system, were heavily influenced by natural rights philosophy. In this context, a privilege, or civil right, came into existence as a result of the social contract that created civil society, but it was as equally justified as pre-existing natural rights. Accordingly, due process rights, contract rights, and patents, among others, were all defined as “privileges.” "In other words," the author states, "in creating a civil society, individuals secured the protection of their natural rights, and they also gained a litany of new rights that defined their freedoms relative to their new fellow citizens and public institutions."

This historical context explains why early American courts treated patents favorably, in contrast to their concomitant disfavoring of monopoly franchises. As Mossoff explains, courts expressly identified patents as "property," and relied on precedents addressing real property or land to resolve patent disputes. Also, judges adopted liberal interpretations of patents, and even the patent statutes themselves, as they "recognized additional rights beyond those expressly provided in the patent statutes."

He concludes, "Modern developments in patent and copyright law may be criticized on the basis of policy concerns, such as emphasizing monopoly costs or championing the value of the public domain, but invocations of an incorrect historical claim cannot serve as a proxy for such arguments." Mossoff's paper, "Reevaluating the Patent 'Privilege,'" is available on the PFF website and at IPcentral.info.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.