The Patent 'Privilige' in Historical Context

In "Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent 'Privilege' in Historical Context," Adam Mossoff gives his views on why the Jeffersonian story of patent law, which associates American patent system with earlier English royal monopoly privileges, "is an historical myth."

According to Mossoff, the appeal of the Jeffersonian story of patent law draws upon the modern English language where the term "privilege is an antonym of "right."" However, in the eighteenth and nineteenth centuries, "privilege" was a term of art that referred to several distinct types of legal rights. And, in "an era dominated by the labor theory of property and social contract doctrine of natural rights philosophy," he writes, "patents indeed were privileges—civil rights securing property rights."

The only official, public document in which a Founder expressly discussed patents is The Federalist Paper No. 43 by James Madison in 1788:

The utility of this power will scarcely be questioned. The copy-right of authors
has been solemnly adjudged in Great Britain, to be a right at common law. The
right to useful inventions, seems with equal reason to belong to the inventors.
The public good fully coincides in both cases with the claims of individuals.
The states cannot separately make effectual provision for either of the cases,
and most of them have anticipated the decision of this point by laws passed at
the instance of congress.

According to Mossoff, by the late eighteenth century, it was well known that these "common law rights" were tantamount to natural rights. In his view,

Without first understanding the definition of privileges as civil rights
justified by the same policies as natural rights—such as Madison’s reference to
patents as justified 'with equal reason' as the labor-theory of common-law
copyright—this important historical justification for patents is lost on modern
readers.

Why should we care about the intellectual history of American patent law? First, if patentee's reasonable expectations are to be informed by history, then Mossoff beleives that it behooves lawyers and jurists to better understand the nature of these expectations and their supporting policy justifications. Second, he warns scholars and lawyers to be careful of using bad history as a substitute for careful normative policy arguments:

For instance, Lessig’s critique that the modern Court contradicts its own
"long history" in limiting patent and copyright is wrong, as is the historical
assumption in the complaint today that patents and other intellectual property
rights are being "propertized." The expansion in patent rights today
is in accord with the similarly expansive development in patent rights under the
guiding influence of natural rights philosophy in the early nineteenth century.
Modern developments in patent and copyright law may be criticized on the basis
of policy concerns, such as emphasizing monopoly costs or championing the value
of the public domain, but invocations of history cannot serve as a proxy for
such arguments.

Perhaps Don Banner put it best when he asked his patent law students "How can you have a monopoly on something that['s novel, and therefore] never existed [in the market]."