USA / PATENTS - COPYRIGHT / CONSTITUTIONAL POWERS

"To promote the progress of Science and the Useful Arts"

Edward C Walterscheid

IDEA: The Journal of Law and Technology, Vol 43 No 1, 2002

Many modern legislatures are largely unfettered in the exercise of their power to make laws on patent and copyright protection. But the United States Congress is subject to the provisions of the Constitution; and this article discusses the exact nature and scope of the powers conferred by the Constitution's "Science and Useful Arts Clause". Although much of the article is historical in approach, it is interesting to see how the views, and in some cases the doubts, expressed by Jefferson and Madison are reflected in recent litigation. (Jefferson, as the author points out, was particularly concerned about the dangers of creating monopolies.) From the outset there were queries about the extent to which the Clause conferred powers on Congress and how far it restricted those powers. These queries were picked up in Goldstein v California, in which Chief Justice Burger stressed that the Clause described both the objective which Congress might seek and the means to achieve it. In other words, to use the author's interpretation, the generic grant is power to promote the progress of science and the useful arts, while the power to issue a limited-term exclusive right to authors and inventors is intended to be incorporated into and made a part of the generic grant. The dichotomy is reflected in the balancing of the private and public interests: the author cites an early case in which the Court held that "the patent law was designed for the public benefit, as well as the benefit of inventors". More recently, the Supreme Court in Graham v John Deere has spoken of the restraints imposed by the stated constitutional purpose and has affirmed that "Congress may not enlarge the patent monopoly without regard to the social benefit gained thereby". The author rightly says that the same is true with respect to copyright and is critical of excessive extensions of the terms of copyright protection; but he accepts that the Courts have sometimes held, as in Alfred Bell v Catalda, that the Constitution recognizes the "basically different standards" for patents and copyrights. The author concludes that "there has been an increasing propensity by the judiciary and Congress, particularly in the copyright context, to interpret particular terms used in the Science and Useful Arts Clause in isolation… The fact that an ever more expansive interpretation of the copyright power has been occurring almost since the inception of the republic does not mean that such expansive interpretation is in accord with the language of the Clause". [20090]