Founding Intentions

BRIAN: Ananda Chakrabarty mentioned the founding fathers. Which to me, guys, sounds like he’s dangerously close to ripping off our trademark history.

[LAUGHTER]

BRIAN: So let’s take a few minutes here and really spell out what those founders intended with this whole patent thing.

PETER: Well, it all starts with the Constitution, Brian. It’s Article I, section VIII. And the guiding genius here is, of course, the Father of the Constitution. That would be James Madison, Thomas Jefferson’s sidekick.

And Madison thinks it’s important to give Congress the power to establish the patent regime in order to encourage innovation, to give inventors some exclusivity over their invention. And the first Congress rises to the occasion and passes an act, which is ripped off from the British–

[LAUGHTER]

PETER: –1623 act setting up a protection for 14 years. And that’s the beginning of patent law in America.

ED: But not everybody was on board with this idea, Peter. I know that your man Thomas Jefferson basically saw copyrights and patents as a kind of monopoly. And if there’s one thing the founding fathers were not fond of, it was monopolies.

So Peter, help me understand this. Would Jefferson object to the idea the Dr. Chakrabarty has an inherent property right in the thing that he created in a lab?

PETER: Well, yeah, Ed. I think Jefferson would object to this idea. You have to understand that there were two different conceptions of innovation and progress. One familiar to us, the genius comes up with something in the lab and somebody’s made a big investment in making that invention possible and a lot of property interests are entangled with the innovation. And we think that there has to be some property right at the core of that.

But in the Enlightenment, you have a different idea. Think of the world as being a laboratory. And that the best way to discover how the laws of nature work and how they can be improved upon to benefit mankind generally, then the more freedom there is in the exchange of ideas, the circulation of ideas. This is something like the spirit the Creative Commons today or Wikipedia.

BRIAN: Yeah. It’s social production, is what we call it.

PETER: We give it to each other because it benefits everybody. And nobody should have a property interest in this collective product that benefits all of us.

In fact, for us, as for Thomas Jefferson and his concerns about monopoly power, the idea that somebody or some group of people will have rights against the rest of us is very much like the spirit of aristocracy and exclusivity.

ED: So the compromise is it that a person gets to be an aristocrat for 14 years.

PETER: That’s exactly right.

BRIAN: It’s like king for a day, Ed.

[LAUGHTER]

PETER: No. But you could say that any property claim, of course, sets me against you and me against the world. And that is, of course, the other side of democracy. And that is the survival of the notion of individual rights against those of the majority.

BRIAN: It’s a necessary evil.

PETER: That’s right. And that’s what Madison responds to Jefferson. Jefferson says, down with monopoly. The whole spirit of what we call democracy is that the earth belongs to the living. We can’t have these exclusive rights because the whole mankind of mankind has a claim on the inventions, the innovations that make life better for all of us. That’s the public good that’s being served.

Whereas Madison says, slow down.

BRIAN: Right.

PETER: Because individuals who are going to make the key innovations and inventions that make life better need to have protections and incentives or they won’t do it at all.