The patent exchange furthers the Founding Fathers’ intent. In the following posts, I would like to demonstrate that (1) the Founding Fathers’ intended for the Patent Clause (Article 1, Section 8, Clause 8) to promote creation on inventions; (2) creation on inventions adds the most value to society; (3) traditional monetization means does not promote creation on inventions; and (4) the patent exchange will promote creation and, hence, further the Founding Fathers’ vision of the Patent Clause.
In this post, I will be discussing (1) the Founding Fathers intent with respect to the Patent Clause.
(1) The Founding Fathers’ intended for the Patent Clause to promote the creation of inventions, i.e., the creation of real, tangible things.
When the U.S. Constitution was ratified, the people of the time were heavily influenced from European ideals from the Age of Enlightenment—this was a time in which people rejected the superstitions of the past, and exalted scientific inquiry as the means to understand the natural world.
Particularly, science was seen as the vehicle to further humankind’s mastery over nature—technological advances in power generation, medicine, agriculture, and other fields propelled the human standard of living, at a rate faster than anyone ever witnessed.
In this backdrop of scientific progress, how did the Founding Fathers intend for the Patent Clause and patent system to be leveraged?
Inventors, two of which included the Founding Fathers themselves (Benjamin Franklin and Thomas Jefferson), were vigorously attempting to create real, tangible things, based on their inventive concepts. To protect an inventor during this process of creation, the inventor sought patent protection (e.g., Eli Whitney sought patent protection for the Cotton Gin).
Because inventors during the time of the Constitution were focused on creating real, tangible things based on their inventive ideas, inventors filed patent applications to protect the process of creation.
Today, we see this picture flipped—more often than not, inventors file for patent applications to protect the idea, not necessarily creation on the idea.
While companies certainly do create products on patented inventions, the ratio of commercialization attempts-to-filed patent applications (“creation rate”) is extremely small—likely orders of magnitude smaller than that during the time of the Constitution.
Of course, this is entirely understandable—due to the specialization of our economy, it would be inefficient for the person inventing to be the same person commercializing. It’s neither reasonable nor efficient to expect an inventor to have or otherwise compete with the manufacturing facilities of a multi-national company.
Without making a judgment call, the takeaway point is that the patent system during the ratification of the Constitution was used as a tool to protect the process of creation, while today’s patent system is leveraged as a tool to protect the idea.