The Constitution

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The Supreme Court and our Intellectual Property System

Patents, trademarks, and copyrights have a very special role in our government because they are specifically mentioned in Section 1 of the Constitution, which is known as the Enumerated Powers Clause. The constitution gives Congress the power to enact laws for certain purposes, such as the creation of money and to "promote the progress of science and the useful arts." The annotated Constitution and Supreme Court cases are available from Justia, an excellent example of Open Data on the net.

In A & P. TEA CO. v. SUPERMARKET CORP., 340 U.S. 147 (1950) , Justice William O. Douglas wrote:

    Every patent is the grant of a privilege of exacting tolls from the public. The Framers plainly did not want those monopolies freely granted. The invention, to justify a patent, had to serve the ends of science - to push back the frontiers of chemistry, physics, and the like; to make a distinctive contribution to scientific knowledge.

In that same opinion, one can sense that Justice Douglas, then operating in his prime, was a bit irked at the patent office for wasting his time for with patents granted on useless devices. As he said, this "dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern."

Here is a list of the useless patents (and some choice words aimed at the Patent Office).

In SCOTT PAPER CO. v. MARCALUS MFG. CO., 326 U.S. 249 (1945), Mr. Justice Stone wrote:

    By the patent laws Congress has given to the inventor opportunity to secure the material rewards for his invention for a limited time, on condition that he make full disclosure for the benefit of the public of the manner of making and using the invention, and that upon the expiration of the patent the public be left free to use the invention.

    The aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of its disclosures. Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 117-120, 59 S.Ct. 109, 113, 114.

In Kendall v. Winsor, 62 U.S. 322 (1858), Mr. Justice Daniel wrote that the entire purpose of the patent laws is disclosure of the device to the public:

    It is undeniably true, that the limited and temporary monopoly [62 U.S. 322, 328] granted to inventors was never designed for their exclusive profit or advantage; the benefit to the public or community at large was another and doubtless the primary object in granting and securing that monopoly. … The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: 'to promote the progress of science and the useful arts,' contemplating and necessarily implying their extension, and increasing adaptation to the uses of society. (Vide Constitution of the United States, art. I, sec. 8, clause 9.) By correct induction from these truths, it follows, that the inventor who designedly, and with the view of applying it indefinitely and exclusively for his own profit, withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress. He does not promote, and, if aided in his design, would impede, the progress of science and the useful arts.


    A patent by its very nature is affected with a public interest. As recognized by the Constitution, it is a special privilege designed to serve the public purpose of promoting the 'Progress of Science and useful Arts.' At the same time, a patent is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.

IN RE TRADE-MARK CASES, 100 U.S. 82 (1879)

In these cases, one defendant was collared by the feds for "knowingly and wilfully having in his possession counterfeits and colorable imitations of the trade-marks of G. H. Mumm & Co., of Rheims, France, manufacturers and sellers of champagne wine." The other defendants were collared for bootleg whiskey sold under the then-quality "OK" label. In arguing for why the U.S. treaty with France should be upheld, the Attorney General of the United States pleaded for the court's support:

    Trade-marks are important instrumentalities, aids, or appliances by which trade, especially in modern times, is conducted. They are the means by which manufacturers and merchants identify their manufactures and merchandise. They are the symbols by which men engaged in trade and manufactures become known in the marts of commerce, by which their reputation and that of their goods are extended and published; and as they become better known, the profits of their business are enhanced.

And, in MOTION PICTURE PATENTS CO. v. UNIVERSAL FILM MFG. CO., 243 U.S. 502 (1917), the court wrote:

    Since Pennock v. Dialogue, 2 Pet. 1, 7 L. ed. 327, was decided in [243 U.S. 502, 511] 1829, this court has consistently held that the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents, but is 'to promote the progress of science and the useful arts' ( Constitution, art. 1, 8),-an object and purpose authoritatively expressed by Mr. Justice Story, in that decision, saying:

    • 'While one great object [of our patent laws] was, by holding out a reasonable reward to inventors and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius, the main object was 'to promote the progress of science and useful arts."

    This court has never modified this statement of the relative importance of the public and private interests involved in every grant of a patent, even while declaring that, in the construction of patents and the patent laws, inventors shall be fairly, even liberally, treated. Grant v. Raymond, 6 Pet. 218, 241, 8 L. ed. 376, 384; Winans v. Denmead, 15 How. 330, 14 L. ed. 717; Walker, Patents, 185.

    These rules of law make it very clear that the scope of the grant which may be made to an inventor in a patent, pursuant to the statute, must be limited to the invention described in the claims of his patent