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Gaining Perspective on Modern Patent Law Debates Through Reflection on Colonial Beginnings

By Richard E. Zelenka1

An understanding of the colonial beginnings of American patent law provides insights and perspective into modern debates. This paper contends that proposed reforms to assign patent ownership by first-to-file rather than first-to-invent, and assertions regarding the legitimacy of business-method patents, are more informed through consideration of colonial experience, motivations, and values. The colonial beginnings of American patent law are first presented. Then modern American patent law is discussed in view of two areas of current controversy, reflecting on the colonial roots of each debate.


Early American patent law, as established in Article I, Section 8 and the Patent Acts of 1790 and 1793, reflected English patent law, colonial implementations of English patent law, and the values of the nascent American republic. Article I, Section 8 authorized Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."2 This federal power provided monopoly rights to patent holders to practice their discovery for limited periods in exchange for public disclosure of the discovery.3

English Unde...

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