Amicus Edward C. Walterscheid is a legal historian specializing in the history of intellectual property law in the United States. Among his publications are To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1 (1994); Inherent or Created Rights: Early Views on the Intellectual Property Clause, 19 Hamline L. Rev. 81 (1995); Conforming the General Welfare Clause and the Intellectual Property Clause, 13 Harv. J. L. & Tech. 87 (1999); and Defining the Patent and Copyright Term: Term Limits and the Intellectual Property Clause, 8 J. Intell. Prop. L. ___ (2000). He is presently completing a book entitled The Nature of the Intellectual Property Clause: An Historical Perspective.
His interest in this appeal is to provide the court with an historical analysis of the constitutional limitations and qualifications placed on congressional discretion to set the term of copyright by the intellectual property clause. Authority to file this brief is by consent of the parties.
The Copyright Term Extension Act of 1998 (CTEA) provides for exclusive rights for the life of the author plus 70 years (or for certain works, if the life of the author cannot be ascertained, for 95 years after publication or 120 years after the creation of the work, whichever is shorter). One effect of the CTEA is to extend the term of existing copyrights by an additional 20 years. This brief is intended to address the holding of the district court that the CTEA's extension of the copyright term does not violate the intellectual property clause because: (a) Congress has broad authority to define the scope of the copyright grant; (b) the "limited times" referenced in the clause is subject to the discretion of Congress; and (c) the introductory language of the clause does not limit the power of Congress to define the scope of the grant or its discretion in setting the term of the grant. Appendix at ___.
The Framers clearly thought that it was the duty of enlightened government to aid in the development of learning and new industries which they would term "the progress of science and useful arts." But what makes the intellectual property clause unique among the enumerated powers given to Congress is that it alone sets forth a specific mode of practicing the general power granted, namely, "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." U.S. Const., Art. I, § 8, cl. 8. That it should do so is significant because there are a variety of ways to promote the progress of science and useful arts which have nothing whatever to do with the granting of a limited-term exclusive right in writings or discoveries.
Why then does the clause set forth this specific mode? The answer in no small measure is that the Framers desired to give Congress authority to emulate or follow the existing British practice of granting exclusive rights through the issuance of patents and copyrights, and they did not believe that Congress would have the power to do so without an explicit grant of authority. The problem is that patents and copyrights were clearly perceived as monopolies, albeit desirable ones. For example, in their discussion of the limited-term exclusive right authorized by the intellectual property clause, both Jefferson and Madison referred to it as monopoly. 1 The Republic of Letters (James Morton Smith, ed., 1995) at 512 and 566. The Framers were not about to give any general power, either implied or express, to Congress to create monopolies, so that if patent or copyright monopolies were to be authorized it had to be done so explicitly and expressly. But precisely because the exclusive right with regard to both patents and copyrights was considered a monopoly, it was deemed essential to limit it in time. Beyond some point, the subject matter of both patents and copyrights was required to become a part of the public domain and available to all.
The Framers gave Congress authority to emulate these British institutions for several reasons. One was familiarity with them. The issuance of patents and copyrights had long been known in England, and these limited-term monopolies were generally perceived to produce social good, both as an encouragement to the development of manufacturing and as an aid to learning. But more than anything else the rationale was pragmatic and economic. This approach to promoting the progress of science and useful arts would cost the new federal government the least to implement while at the same time providing a desired pecuniary incentive to both inventors and authors.
In drafting the intellectual property clause, the Framers followed the British practice in another critical respect. They set forth a statement of purpose that closely paralleled those given for the British patent and copyright practice. Thus it had long been understood that the purpose of the patent grant in England under the Statute of Monopolies (1623) was to encourage the development of "new manufactures within this realm." 21 James I, c. 3, § 6. The Statute of Anne (1710) providing for copyright was styled "An act for the encouragement of learning," and its preamble declared that it was "for the encouragement of learned men to compose and write useful books." 8 Anne, c. 19, reproduced in Nimmer et al., 8 Nimmer on Copyright App. 7-5 [Rel. 34-12/93].
The use of the phrase "for limited times" in the clause was intended to give Congress authority to set patent and copyright terms in a manner similar to that followed in the British practice without being bound to a particular term. Under the Statute of Monopolies the crown had authority to set a patent term of up to 14 years. "The statutory limitation of the term . . . to fourteen years . . . was avowedly based on the consideration that the patent should not operate in restraint of trade." E. Wyndham Hulme, The History of the Patent System Under the Prerogative and at Common Law, 12 Law Quarterly Rev. 141, 153-54 (1896). Parliament could extend this term if appropriate justification was shown. Extensions, when they occurred, were typically on the order of four to seven years, although occasional longer extensions occurred.
Because the rationale for the copyright provision of the intellectual property clause was similar to that for the Statute of Anne, it is important to understand why the Statute set a fixed term for copyright. In the middle of the sixteenth century the crown chartered the company of stationers and granted it general supervision of the trades of printing, binding, publishing, and dealing in books. In return for this right of supervision, the stationers agreed to royal censorship, supervision, regulation, and licensing of books to be printed. The stationers' company quickly established a register in which were recorded the works for which copying rights or privileges had been obtained. Unless a printer or publisher had obtained a printing patent from the crown, the work to be printed had to be registered with the stationers' company. During the seventeenth century, a variety of ordinances and parliamentary acts assured control of the stationers' company over the printing, publishing, and bookseller trades and permitted the registered copying rights to be maintained as monopolies. A critical aspect of these registered copying rights was that they were of unlimited duration.
The last of the licensing acts expired in 1794 and those holding exclusive copying rights from the stationers' company found themselves essentially in limbo. They desperately sought to have new legislation enacted to confirm those rights, but when the Statute of Anne was enacted in 1710, it was quite different than what the booksellers and publishers wanted. The major difference was that the term of the statutory copyright was expressly limited. This came about because during debate in the House of Commons, considerable concern was expressed that a perpetual or unlimited term would result in monopoly of the worst sort and an inevitable restraint of trade. As a result, the Statute of Anne set an initial copyright term of 14 years but authorized a term renewal for another 14 years if the author was still living at the end of the initial term. The initial term was identical to the patent term authorized by the Statute of Monopolies and was likely copied therefrom. Mark Rose, Authors and Owners: The Invention of Copyright (1993) at 45. There is nothing to indicate that Parliament ever attempted to extend or renew copyright outside the bounds set by the Statute of Anne.
The generally parallel structure of the intellectual property clause suggests that the purpose of the copyright provision of the clause is "to promote the progress of science," i.e., learning or knowledge, and the purpose of the patent provision "to promote the progress . . . of useful arts," which was similar to manufactures in the British lexicon. The first federal Congress certainly assumed this to be the case when it titled the first copyright statute "An act for the encouragement of learning. . . ." and the first patent statute "An act to promote the progress of useful arts." 1 Stat. 124 (May 31, 1790); and 1 Stat. 109 (April 10, 1790). These statutes copied the British patent and copyright terms, which is clearly indicative of a congressional understanding that the intent of the intellectual property clause was to authorize Congress to emulate the British patent and copyright practice.
That the intellectual property clause was intended to give Congress authority to emulate the British patent and copyright practice and that the reasons for this authority were the same as those set forth in Britain was well understood in the early republic. As Justice Story put it: "It was doubtless to this knowledge of the common law and statuteable rights of authors and inventors, that we are to attribute this constitutional provision." 3 Joseph Story, Commentaries on the Constitution of the United States § 1147 (1833).
The Supreme Court has addressed the meaning to be given to "for limited times" only in an indirect sense. In 1829 in Pennock v. Dialogue Justice Story referred to this language, saying: "It contemplates . . . that this exclusive right shall exist but for a limited time, and that the period shall be subject to the discretion of Congress." 27 U.S. (2 Peters) 1, 16-17 (1829). In more recent times, the Court has stated that "Congress may not create monopolies of unlimited duration." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989).
Nonetheless, the discretion afforded to Congress with respect to the patent and copyright term is not unbounded, and Justice Story does not provide support for any view that courts may not interpret the meaning to be given to "for limited times." In Pennock he made the following point: "The words of our statute are not identical with those of the statute of [Monopolies], but it can scarcely admit of doubt, that they must have been within the contemplation of those by whom it was framed, as well as the construction which has been put upon them by Lord Coke." 27 U.S. 20-21. Although Story referred to the language of the Patent Act of 1793, his words are fully applicable to the language of at least the patent provision of the intellectual property clause. It is thus useful to recall what Lord Coke had to say about the patent term as set forth in the Statute of Monopolies. He argued that the patent privilege was proper as long as it was for "a convenient time" which he perceived as the time required to bring a "new manufacture" within free practice in the realm. 3 Institutes of the Laws of England 184 (1644). In interpreting the constitutionally acceptable patent term, there is little doubt that Story agreed with Coke that it should be adequate to encourage the social progress at the root of the patent system but no longer.[FN 1] In his Commentaries, published four years after his Pennock opinion, Story made the point clear with regard to both the patent and the copyright term by his statement that short terms are beneficial in that they "admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint." Story, op cit.
In interpreting the meaning of "for limited times," the issue is not whether Congress has power to extend the term of copyright in an appropriate circumstance. It does, but only to a certain point, namely, one conforming to the limitations inherent in the language of the intellectual property clause taken as a whole. Thus, any judicial determination as to the meaning to be given to the phrase "for limited times" cannot look at the phrase in isolation. As the Supreme Court made clear in 1834 in Wheaton v. Peters with regard to copyright, the meaning of a word or phrase in the clause must be determined in the context of the "words and sentences with which it stands connected." 33 U.S. (8 Peters) 591, 661 (1834). Both the introductory language of the clause and the phrase "the exclusive right" serve to limit or qualify the authority of Congress to set the term of copyright.
The Introductory Language
A basic issue in determining the upper bound of the constitutionally permitted copyright term is the extent to which the stated purpose of the intellectual property clause acts to limit the discretion of Congress to set that term. While not specifically addressing this issue, a frequently quoted copyright treatise states: "the phrase 'To promote the progress of science and useful arts . . .' must be read largely in the nature of a preamble, indicating the purpose of the power but not in limitation of its exercise." 1 Nimmer on Copyright § 1.02(A) [Rel. 44-12/97]. The only authority cited for this view is Jacobsen v. Massachusetts wherein the Supreme Court stated only that the preamble to the Constitution itself "has never been regarded as the source of any substantive power conferred on the government of the United States, or any of its departments." 197 U.S. 11, 23 (1904). But the intellectual property clause is in fact a substantive grant of power to Congress, and the introductory portion thereof may not be read out of it and rendered meaningless.
Despite contrary Supreme Court authority, this court has also stated that "we cannot accept . . . that the introductory language of the Copyright Clause constitutes a limit on congressional power." Schnapper v. Foley, 667 F.2d. 102, 112 (D.C. Cir. 1981). For reasons that are unclear, this contrary authority apparently was not brought to the attention of the court in Schnapper, so that it is necessary to summarize it here.
From early in the republic the Court has accepted the view that a statement of purpose is highly relevant in construing the nature and extent of the powers granted to Congress. Thus, e.g., in 1824 in Gibbons v. Ogden Chief Justice Marshall stated:
If from the imperfections of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given , especially when the objects are expressed in the instrument itself, should have great influence on the construction. * * * We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken together with the purposes for which they are conferred.
22 U.S. (9 Wheat.) 1, 187-88 (1824). In the context of the intellectual property clause, these views have particular significance, for they clearly indicate that a statement of purpose or objects set forth in the clause itself "should have great influence" on the interpretation of the clause. Phrased differently, the statement of purpose, i.e., "to promote the progress of science and useful arts," constitutes a limitation on the power of Congress granted by the clause which must be taken into account in interpreting it.
Indeed, the Supreme Court has expressly recognized this in the patent context and implicitly in the copyright context. Thus, in 1966 in Graham v. John Deere Co. the Court relied heavily on the introductory language of the clause to support its view that there is a constitutional standard of invention that must be met for there to be patentability. It began by noting that the qualified authority given to Congress with regard to the issuance of patents "is limited to the promotion of advances in the 'useful arts'" and went on to state that "Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose." According to the Court, "'promot[ing] the Progress of . . . useful Arts' . . . is the standard expressed in the Constitution and it may not be ignored." 383 U.S. 1, 5-6 (1966).
The import of this is that, with regard to patents, the Court has most emphatically stated that the introductory language is a limitation which sets forth a constitutional standard that Congress may not ignore. This is as true with respect to the patent term as it is with respect to the nature and type of invention that may be protected. Simply put, there is a term beyond which the progress of useful arts is no longer promoted and beyond which such progress may actually be said to be hindered. It is at this point that discretion of Congress to set the patent term becomes constitutionally limited. The Court made this same point implicitly with respect to copyright in Twentieth Century Corp. v. Aiken when it stated that: "The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." 422 U.S. 151, 156 (1975).
The Exclusive Right
Whereas the patent and copyright provisions in the intellectual property clause exhibit a generally parallel structure, there is one critical exception to this parallelism, in that the clause provides for "the exclusive right" rather than "exclusive rights" as the otherwise parallel structure of the clause would seem to suggest. This singularity was deliberate by the Framers. In this regard, it should be noted that the final draft of the Constitution shows a correction in the clause wherein "a limited time" is changed to ""limited times." This change was nothing more than a correction of an error in the final draft. Walterscheid, 2 J. Intell. Prop. L. at 53-54. This correction coupled with the fact that "the exclusive right" was not changed is indicative that the use of the phrase "the exclusive right" rather than "an exclusive right" or "exclusive rights" was deliberate. The Framers desired "the exclusive right" to be the same for both patents and copyrights. But even if one ignores intent, textualism compels the same conclusion.
There is a plausible rationale for the use of the singular "the exclusive right" in the clause. It assures that the exclusive patent right and the exclusive copy right would be treated in the same fashion under American law, and not in the manner of the British practice wherein the copyright monopoly was treated as a common-law or at least a statutory right while the patent monopoly was treated as a privilege and not a right per se. In other words, the combination of authority with respect to patents and copyrights in the same clause coupled with the deliberate use of the singular "the exclusive right" requires Congress to treat the authority granted in at least equivalent fashion for both patents and copyrights.
A copyright term almost five times longer than the patent term, such as presently exists under the CTEA, creates an "exclusive right" with respect to copyrights that appears fundamentally different than that with regard to patents and hence constitutionally suspect. As the Supreme Court put it in Wheaton v. Peters:
In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? In the production of this, his mind has been as intensely engaged, as long, and, perhaps, as usefully to the public, as any distinguished author in the composition of his book. The result of their labors may be equally beneficial to society and in their respective spheres they may be alike distinguished for mental vigor.
For these reasons, the Court went on to state that: "It would seem, therefore, that the existence of a principle [giving a disproportionately longer term to copyright than to patent] may well be doubted, which operates so unequally." 33 U.S. 657-58.
The Supreme Court made clear in Aiken that "the exclusive right" encompassed by copyright must serve the public interest. In so indicating, however, the Court quoted Lord Mansfield's statement, now more than 200 years old" "[W]e must take care to guard against two extremes equally prejudicial, the one, that men of ability, who have employed their time in the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor progress of the arts retarded." 422 U.S. 156n, citing to Sayre v. Moore.
The views expressed in Aiken are remarkable in several respects. First of all, they accept the ideas that were becoming prevalent in England at the time the Constitution was drafted, namely, that there are two separate and competing rationales for both the patent and the copyright systems and that the patent and copyright terms are derived from a balancing of the tensions between these two competing justifications. Secondly, the Court assumed, without any citation of authority, that these competing rationales were also the justification for--and indeed the purposes of--the intellectual property clause.
In so doing, it made no reference whatever to the language of the clause taken as a whole. Even a cursory look indicates that its purpose is "to promote the progress of science and useful arts." Nothing in it states that creating a property right or rewarding genius is its purpose. The assumption by the Court that this is indeed a purpose of the clause appears to confuse the means with the end and appears at odds with the literal language of the clause. Thus, the purpose is clearly stated to be to provide societal benefit by promoting the progress of science and useful arts. No other purpose is set forth. A means for achieving the stated purpose is expressly stated to be creation of a limited-term exclusive right in authors and inventors. While this means is also viewed on occasion as an incentive or reward for the creations of genius, i.e., writings or inventions, the clause does not in any way state that providing such incentive or reward is the purpose of the grant of authority.[FN 2]
Although the Court has tended on occasion to rather loosely speak of "the exclusive right" authorized by the clause as a reward, it is more correctly viewed as an incentive to creation rather than as a reward for creation. In this regard, the Court has emphasized that the copyright monopoly that Congress may grant is not "primarily designed to provide a special private benefit" but rather is "a means by which an important public purpose may be achieved." The "limited grant" authorized by the Constitution "is intended to motivate the creative activity of authors and inventors by the provision of a special reward [incentive would have been more accurate], and to allow the public access to the products of their genius after the limited period of exclusive control has expired." But "[t]he copyright law, like the patent statutes, makes reward to the owner a secondary consideration." Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
To the extent that the Court has continued to read into the clause a purpose of rewarding authors, it has also reiterated that: "The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.'" Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994); and Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340, 349-50 (1991). Thus it is clear that in setting the copyright term, Congress is constitutionally precluded from placing reward to the author above the public interest.
In the case of copyright, the nature of the public interest is clear. It is not harmonization with other law or favorably affecting the balance of trade. Nor does it reside in providing a form of social welfare for authors, their spouses, children, and grandchildren. It most assuredly does not encompass monetary benefit to the children or grandchildren of authors. Rather it is apparent both from the language of the intellectual property clause and the title of the first copyright act, that constitutionally "the primary purpose of copyright is to promote learning, and the rights of the author are recognized only as an aid in furtherance to this purpose. The interest of the public is paramount. . . ." Lyman Ray Patterson, Copyright in Historical Perspective (1968) at 196.
There is another aspect to the public interest implicit in the clause. That is enhancement and enlargement of the public domain of creative works. Aiken, op cit.; Sony, op cit. While the clause provides an incentive in the form of a temporary monopoly, that monopoly must be only long enough to serve as incentive for the production of creative works and not as a detriment to the public good. The longer the term of copyright, the less likely that an extension of the term actually serves as an incentive, and the greater the likelihood that any term extension will be to the detriment of the public and serve as an illegal and unconstitutional restraint of trade.
In this regard, the discussion of the constitutional aspects of copyright law in the House report accompanying the 1909 Copyright Act is particularly significant. That discussion points out that the intellectual property clause limits the power of Congress by several conditions, one of which is that "[t]he object of all legislation must be . . . to promote science and the useful arts." Accordingly, "the spirit of any act which Congress is authorized to pass must be one which would promote the progress of science and the useful arts, and unless it is designed to accomplish this result and is believed, in fact, to accomplish this result, it would be beyond the power of Congress." The report noted that copyright is "[n]ot primarily for the benefit of the author, but primarily for the benefit of the public." Thus, it emphasized that "[i]n enacting a copyright law Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public." It concluded that any such legislation must confer "a benefit upon the public that outweighs the evils of the temporary monopoly." H.R. Report No. 2222, 60th Cong. 2d Sess. (1909), as reproduced in 8 Nimmer on Copyright App. 13-1, at App. 13-10, and App. 13-11. These views were cited with approval by the Supreme Court in Sony, 464 U.S. 429, n. 10.
The term for both patents and copyrights set in 1790 was the same, i.e., 14 years. In the intervening 210 years, Congress has increased the patent term by 43% to 20 years. 35 U.S.C.A. § 154 (1999 Cum. Supp.). With enactment of the CTEA in 1998 Congress extended the term of existing copyright by 20 years to 95 years. 17 U.S.C.A. § 304 (2000 Cum Supp.). Thus, under the CTEA, the copyright term has now been extended by almost 600% from its original length set in 1790. Under the CTEA the term of existing copyright is almost five time longer than the term of existing patent.
The Copyright Act of 1790 authorized term renewal for another 14 years but only if the author was living at the end of the first term. The Copyright Act of 1831 doubled the initial term to 28 years and authorized a living widow or children to seek a renewal for 14 years. Sections 1 and 2, Act of February 3, 1831, 4 Stat. 36. The literature does not disclose the basis for this increase in the initial term or for the change authorizing renewal by a widow or children, but it is reasonably apparent that the intent was not to serve as an additional incentive for creative works, but rather to provide additional monetary income or benefit as a form of social welfare protection.
Congress made this point abundantly clear in the legislative history to the Copyright Act of 1909 which retained the initial 28 year term and extended the renewal term to 28 years as well.[FN 3] Sections 23 and 24, Act of March 4, 1909, ch. 320, 35 Stat. 1075. According to the House report accompanying the Act, the doubling of the renewal term to 28 years taken together with an original term of 28 years "ought to be long enough to give the author the exclusive right to his work for a period that there would be no probability of its being taken away from him in his old age, when, perhaps, he needs it the most." H.R. Report No. 2222, 60th Cong., 2d Sess. (1909), as reproduced in 8 Nimmer on Copyright at App. 13-21--App. 13-22.
The Copyright Act of 1976 set a unitary term of copyright beginning at the date of the work's creation and continuing for the life of the author plus 50 years after his or her death was established. 17 U.S.C. § 302(a) (1994). The term of existing copyright was extended to a total of 75 years. 17 U.SC. §302(c) (1994). Seven separate rationales were set forth for this further extension of the copyright term, none of which indicated in any way that the purpose of the longer term was to act to promote learning or as an incentive for the production of creative works. Rather, the first rationale was that the 56-year term of the 1909 Act was not long enough to assure an author and his dependents a fair economic return, given the substantial increase in life expectancy. 3 Nimmer on Copyright at § 9.01[A] (Rel. 38-12-95).
As has been noted, the CTEA extended the term of existing copyright to 95 years. Although incidental reference was made to the public interest, the primary rationales for the extension were harmonization, balance of trade, and providing economic benefit to the children and grandchildren of authors. No attempt was made to show that lengthening the copyright term for an additional 20 years would in any way promote the progress of learning or act as any significant incentive for the production of creative works. H.R. Rep. No. 105-452, 105th Cong., 2d Sess. (1998).
Congress does not constitutionally have unfettered discretion to set the term of copyright. The phrase "for limited times" was not made a part of the intellectual property clause to allow Congress to set any term short of perpetuity to advance any interest it deemed appropriate. Rather the phrase was chosen to give Congress discretion to emulate the existing British practice with regard to both the patent and the copyright term, and not be limited to a fixed term. But in exercising this discretion, Congress must bear in mind that the public interest of promoting the progress of learning is paramount and must take precedence over any private interest of the author or indeed over any other contemplated public interest, however defined. Moreover, in setting the term of copyright, and patents for that matter, Congress is bound by the fact that "the exclusive right" is constitutionally the same for both copyrights and patents. The ultimate purpose of copyright is to place the copyrighted work in the public domain, and Congress has no constitutional authority to delay transfer of the copyrighted work to the public domain for any purpose other than that set forth in the intellectual property clause.
If under the intellectual property clause there is indeed a balance between the public interest and the interest of individual authors and inventors, as both the Supreme Court and Congress state there is, then the time has come for this court to delineate the constitutional factors which affect such a balance and to determine whether the present copyright term is in accord with those factors.
Edward C. Walterscheid
Amicus curiae, pro se
[FN 2] The Court has expressly rejected an argument that the purpose of the clause is to secure and protect an inherent property right of authors in their writings. Wheaton v. Peters, 33 U.S. (8 Peters) 591 (1834).
[FN 3] Congress has never set forth a statutory basis for term renewal of patents, although in the middle part of the nineteenth century the patent statute provided for an administrative process for extending the term for seven years if the patentee had failed to receive a reasonable remuneration during the original term 14-year term. Section 18, Act of July 3, 1836, 4 Stat. 559. No argument whatever was made that term extension would serve as an incentive to invention. Under the modern interpretation of the intellectual property clause, this basis for term extension, without more, is constitutionally suspect. For the next 100 years after 1875 there was no statutory basis for term extension, and when such was again statutorily authorized, it was limited to five years. 35 U.S.C. §156 (1994).