"The Origins & Meaning of the Intellectual Property Clause"

Harvard-Yale Cyberscholar Working Group:  April 6, 2005.

Dotan Oliar, Berkman Fellow, The Origins and Meaning of the Intellectual Property Clause

In Eldred v. Ashcroft (2003) the Supreme Court reaffirmed the primacy of historical and textual considerations in delineating Congress’ power and limitations under the Intellectual Property Clause. Nevertheless, the Court never examined what is perhaps the primary source shedding light on these considerations: The debates in the federal Constitutional Convention that led to the adoption of the Clause.

Several unsettled questions stood to date in the way of identifying fully the legislative history behind the Clause. Thus, the Article goes through a combined historical and quantitative fact-finding process that culminates in identifying eight proposals for legislative power from which the Clause originated.

The Article proceeds to examine the process by which various elements of these proposals were combined to produce the Clause. This process of textual putting together reveals that the text “promote the progress of science and useful arts” was intended as a limitation on Congress’ power to grant intellectual property rights. It further shows that Eldred did not imply that Congress’ power is not limited by the advancement of knowledge. To explicate the Clause’s enigmatic text, the Article presents a model that clarifies Congress intellectual property power and limitations. The originalist analysis further tends to support the constitutionality of business method patents, clarifies the meaning of “progress” under the Clause, and suggests that the Clause should not be read disjunctively, as is widely believed.

Not entering the general debate over methods of Constitutional interpretation, the Article deals with the most troubling applications of general critiques of originalism that are relevant to the current project, namely the inconsistency of the historical record and the reluctance to rely on the Convention’s secret debates.