The Commodification of Patents 1600-1836 : How Patents Became Rights and Why We Should Care

This essay argues that the process of the commodification of information, in the historical context of patents, was not merely an increase in the extent to which patent rights and the information they protected were the subjects of market transactions. The commodification of patents, rather, involved the development of a particular institutional form and the construction of a specific market. The essay surveys the development in the Anglo-American legal tradition of one seminal aspect of this institutional change: the transformation of patents from particularistic privileges to universal rights. The early origins of patents in England and later in the American colonies were particularistic privileges. Patents were case specific, discretionary grants of economic privileges made by either the executive or the legislature. These grants were openly political and their legitimacy rested on a case-specific claim to promoting the public interest. In a three hundred year process that culminated in the mid nineteenth century patents became universal rights. Under this new institutional model patents became a standard set of entitlements enjoyed, as a matter of right, upon the fulfillment of general and uniform substantive and procedural criteria. Patents came to be seen as neutral rights whose legitimacy is rooted in the general social utility of the regime as a whole rather than that of any specific case. The government was reassigned the role of a non-discretionary impartial enforcer of patent rights. The essay argues that, despite important innovations of the first American patent regime, this institutional change was far from complete when it was launched in 1790. It describes the later parts of the process that stretched into the aftermath of the 1836 Copyright Act and beyond. The essay ends with a few brief suggestions about the significance of the modern institutional character of patents as universal rights