Statutes, Common Law Rights, and the Mistaken Classification of Patents as Public Rights

By Mossoff, Adam | Iowa Law Review, July 2019 | Go to article overview

Statutes, Common Law Rights, and the Mistaken Classification of Patents as Public Rights


Mossoff, Adam, Iowa Law Review


I. Introduction

The relationship between property rights and the regulatory authority of the federal or state governments has long been fraught with tension.1 This is as true for property rights in inventions as it is for property rights in land or other tangible assets. Even in the nineteenth century, patent owners challenged the reach of state police power regulations over their property rights.2

Although legal and constitutional analysis is often framed today in consequentialist terms, courts define the scope of constitutional protection of legal rights under the Constitution by a formal classification between public rights and private rights.3 In the context of legal rights in property, public rights are privileges such as monopolies granted by the political branches, and thus there is greater discretionary authority to both define them and adjudicate them according to political processes in Congress or in administrative agencies in the Executive branch.4 Private rights are classic individual rights, such as the rights to life, liberty, and property, which are secured by courts and are the core rights that set the limits of authority of the government.5 This distinction has longstanding roots in Anglo-American law, but as the administrative state grew in both size and power in the twentieth century, it has been put under tremendous stress. Commentators now allege it is "a grab bag of miscellaneous results that have some historical roots but no underlying logic."6 Courts today agree that it is less than clear.7

Yet, this hoary distinction between private rights and public rights is important. It was the basis for the Supreme Court's decision in 2018 in Oil States v. Greene's Energy upholding the constitutional legitimacy of the Patent Trial and Appeal Board ("PTAL"), an administrative tribunal created by Congress in 2011 to review and cancel issued patents.8 The Court concluded that the constitutional question was resolved entirely in favor of the PTAB in holding that patents are public rights, not private rights.9

Foundations matter. Oil States proves this. A venerable and fundamental classification of legal rights-public rights or private rights-determined the result in this significant case at the intersection of administrative law, constitutional law, and patent law.

Unfortunately, the distinction between public rights and private rights is misunderstood and misapplied today.10 Oil States again proves this; in his opinion for the Court, Justice Clarence Thomas argues that patents are public rights solely because they are statutory rights created by Congress, not common law rights created by courts.11 This is a common assertion today -statutory rights are public rights and common law rights are private rights. It has become conventional wisdom in both patent law and copyright law, in which the "privileges" set forth in the patent or copyright statutes are regularly contrasted against the private property "rights" secured in real estate and other tangible assets by common law courts.12 This reduction of the distinction between public rights and private rights to a distinction between statutes and judge-made doctrines is deeply mistaken, both on historical and legal grounds.

In three parts, this Essay will explain why the longstanding classification between public rights and private rights matters in patent law, and how courts and commentators have erred in reducing this fundamental dichotomy to merely identifying whether a legal right is based in either statutes or judicial decisions. Part II briefly explains the public right and private right distinction and the import of this classification for property rights in the modern administrative state. Part III identifies the conventional wisdom today among commentators and courts, who believe that the distinction between public rights and private rights is reducible solely to a distinction between statutory rights and common law rights. Part IV describes why it is a mistake to assert that patents are solely statutory rights and that property rights in land are solely common law rights, as these legal regimes were born of both statutes and court decisions. …

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