The Hamiltonian Origins of the U.S. Patent System, and Why They Matter Today

By Merges, Robert P. | Iowa Law Review, July 2019 | Go to article overview

The Hamiltonian Origins of the U.S. Patent System, and Why They Matter Today


Merges, Robert P., Iowa Law Review


I. Introduction

I revisit one of the earliest administrative functions of the United States government, the granting of patents,1 to show why the U.S. Patent Office fits so poorly with the contemporary model of an Executive Branch agency in the modern Administrative State. The Patent Office participated in the most important job of the new national government: building the institutional infrastructure to support and promote economic activity. It did this job in parallel with other "proto-agencies," such as the Post Office; the General Land Office (succeeding a division of the Treasury Department), which surveyed land and issued title to settlers; the customs Service; and the Treasury Department's Coastal Trade Office. In these early years, the overriding policy of rapidly building out a robust national economy provided a unifying force that blurred the lines between legislature, courts, and the executive function, and even (at times) between citizen and state.2

The Patent Office had been performing its basic function for nearly onehundred years when the modern "administrative revolution" began in the federal government. This revolution, dating from the 1870s, was a response to the accumulation of private power and the complex problems brought on by rapid industrialization. The powerful federal agencies created during this era-beginning with the Interstate Commerce Commission, continuing with the Food and Drug Administration, and then later the "alphabet soup" of agencies from the 1920s to the 1940s-had much to do with counterbalancing the emergent power of large, concentrated industries and very little to do with the original Patent Office mandate from Hamiltonian times. As a consequence, contemporary administrative law is a poor fit for the Patent Office. Administrative law, and in particular its formalized instantiation in the Administrative Procedure Act ("APA"), is the culmination of legal oversight of the Regulatory State. It governs power relations between federal agencies and the industries they regulate, with courts often acting as referee. But the Patent Office grants government-sanctioned property rights to dispersed inventors in an extremely wide variety of industries, and then gets out of the way while private investment, transactions, and enforcement take over. As one of the original proto-agencies, the Patent Office is a creature of its time, charged not with regulating concentrated power but with handing out a small dollop of state power to dispersed parties in the form of individual property rights. Although some features of the modern administrative apparatus surely apply to the Patent Office (e.g., hiring practices and collective bargaining), the historical and "organic" interrelations between the Office and other branches of government are generally best left to the looserfitting understandings of the pre-APA world.

In practical terms, I am arguing in support of two propositions. First, we should not push for Chevron deference to Patent Office interpretations of the Patent Act. Second, we should respect the traditional role of Article III courts in the patent system by (a) continuing the practice of court review of individual Patent Office decisions (except when prohibited by statute), by (b) respecting the courts' ultimate authority in interpreting the Patent Act (i.e., bypassing the Chevron station), and by (c) supporting judicial innovations designed to adapt to changing conditions. Examples of adaptive innovations include the creation of the "invention" (later, obviousness) test in the 1850s, the calling into existence of the double patenting doctrine in the later 19th century, and other judicial innovations discussed later in this paper.

In my decidedly minority view, probably the best way to ensure that the Patent Office continues to promote economic activity under rapidly changing conditions is to honor the legacy of its original mission and its cooperative, interactive relationship with the other branches of government. …

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