Constitutionalizing Patents: From Venice to Philadelphia

Patent law today is a complex institution in most developed economies, and the appropriate structure for patent law is hotly debated around the world. A crucial feature shared among the diverse patent systems of the industrialized world, even before the recent trend toward harmonization, is that modern patent regimes are "constitutionalized," meaning the self-restriction of executive and legislative discretion over the patent power. Given the lucrative nature of patent monopolies and the long history of granting patents as a form of patronage, the choice to confine patents within a legal framework that minimizes the potential for rent-seeking requires explanation. Why choose to constitutionalize patents? This paper answers this question by examining three salient constitutionalizing events through the lens of public choice theory-a theoretical framework all but absent in patent and innovation scholarship. Using interest-group analysis, we trace the constitutionalization of patent law from the Venetian patent statute of 1474, through the English 1624 Statute of Monopolies, to the Intellectual Property Clause of the United States Constitution. We argue that creating constitutional patent law institutions offered the opportunity to both increase the durability of the bargain between the state and the inventor and, in some cases, to limit the grant of patents to those most likely to increase the general welfare.