Hastings Constitutional Law Quarterly


Congress' constitutional power to establish a patent system is not unrestrained. Rather, it is derived from a clause that expressly limits the reach of any patent system created by requiring it "to advance the progress of science and the useful arts." Inherent in any such system is the fundamental quid pro quo between society and inventor: an inventor receives an exclusive right for a limited time to his invention, and society benefits from the full disclosure of the inventor's knowledge, incentivizing research and dispersing knowledge. However, while this constitutional dictate remains unaltered, the patent system has grown and changed markedly since its inception. Congress has established statutory provisions and designated a specialized court, the Federal Circuit, to handle patent litigation appeals. Additionally, technological advancements and changes in economic commerce in patents have had a profound impact on the patent system.

This note details the history behind and the meaning of the constitutional grant of power to Congress to create the patent system and then explores the effect of recent changes to and developments in the patent system and their effects on the system's constitutionality. It then concludes that recent developments, particularly the Federal Circuit's treatment of patents during litigation, have moved the patent system away from its constitutional dictate, and that the culminating effect of these alterations has rendered the current patent system perhaps unconstitutional and certainly in need of reform. After surveying several existing proposals for patent reform, this note suggests instituting certain changes or combinations thereof, such as maintaining and enforcing high standards for granting a patent, increasing courts' willingness to find patent claims invalid during litigation, limiting the extent to which a patent monopoly may be exploited, and possibly delisting biological matter from patentable subject matter.