Competition, Cartels and Their Regulation

By John Perry Miller | Go to book overview

CHAPTER 8
THE ROLE OF PATENTS1

ALFRED E. KAHN

Cornell University, Ithaca, N.Y., U.S.A.

The patent law is rooted in capitalism. To grant to "any person who has invented any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof," 2 the privilege "of the sole working or making"3 of whatever he has discovered is a peculiarly capitalistic device. Its philosophic justification is that of property itself: that the artisan is entitled to the exclusive enjoyment of the product of his labor-in this instance "a new trade" or idea-and that to protect him in the enjoyment of what he has contrived will encourage assiduity and ingenuity in economic pursuits beneficial to the community at large. It was, therefore, no accident that the historic common law cases and Statute of Monopolies, of the early seventeenth century, which formally stated the right of individuals to pursue callings of their own choosing, against the British Crown's indiscriminate issue of letters patent, likewise set forth as an exception the permissibility of such grants of monopoly privilege "here any man by his own charge and industry, or by his own wit or invention doth bring in new trade into the realm, or any engine tending to the furtherance of a trade that was never used before...4


I. THE THEORY OF PATENTS

The history of the patent law has been marked by continuous controversy over its ethical, social and economic premises. The disputes are reminiscent of those over the basic institutions of capitalism itself: for example, is property theft, as Proudhon asserted, or an inducement and reward for productive effort: so with the patent, the question has been raised, over and over: is it legalized monopoly, a license to exploit consumers, capriciously distributed, or does it merely provide

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