State Patent Laws in the Age of Laissez FaireBerkeley Technology Law Journal (2013)
AbstractThis article brings to light the heretofore unstudied views of esteemed nineteenth century jurists, including Chief Justice of the New York Supreme Court James Kent (1763-1847), that states have concurrent constitutional authority to grant their own patents alongside Congress in order to stimulate innovation and economic development in their own territories. Based on arguments surrounding the constitutional validity of New York’s infamous steamboat monopoly, this article reveals that concurrent state patent powers were justified by a fundamental concern that market-based U.S. patents were not a sufficient replacement for the active patent policies of the states and colonies prior to ratification of the Constitution. Therefore, in the tradition of Alexander Hamilton – whose vision of a strong central government was tempered by a recognition of the importance of independent state policymaking, and whose vision of a vibrant free market was tempered by a recognition that targeted government incentives are sometimes necessary to stimulate investment in beneficial activities – state patents were seen as a potentially important policy tool for encouraging the private sector to invest in developing costly technology of unproven value that states nonetheless deemed worthy of support.
- patents federalism james kent alexander hamilton patent law history
Publication DateSummer August 9, 2013
Citation InformationState Patent Laws in the Age of Laissez-Faire, 28 Berkeley Tech. L.J. (forthcoming February 2013