Article 1, Section 8, Clause 8
William Rawle, A View of the Constitution of the United States 104--6 1829 (2d ed.)
At common law, it seems to have been a question whether the inventor of any new art or improvement had such a special property in it, as to entitle him to pursue another who made use of it after the inventor had made it public. But there was no doubt that if another person had fallen on the same invention, without a knowledge of the first, he would be entitled to the benefit of his own talents. It has however been deemed in many countries politic and wise, to secure to the first inventor a reward for the time and study employed in such pursuits. In England, the king undertook, on the score of royal prerogative, to grant exclusive privileges of making and selling articles of domestic manufacture, and of importing foreign articles, by which protection to such inventors was occasionally obtained. But this practice began to be abused, and such licenses or monopolies, often conferred as rewards on particular favourites, or used merely to promote the interest of the crown, had increased in the reign of Elizabeth and James I. to an alarming degree, and therefore, by an act passed in the twenty-first year of the reign of the latter, all such grants are declared to be void; in the fifth section, however, a proviso is introduced, which is the foundation of the present system in that country relative to patents, by allowing them to be granted to the authors of any new inventions for a term not exceeding fourteen years.
In respect to what is termed literary property; the right which a person may be supposed to have in his own original compositions,--the same doubts as to the common law are entertained, and the protection of a statute has been likewise extended, which at the same time disposed of the common law question, as to those who complied with its forms, by declaring that the author should have the benefit of it for fourteen years, and no longer, unless he was still living at the expiration of the first term, when it might be renewed for fourteen years more. But as the author might not avail himself of the benefit of the statute, the question remained unsettled till the year 1774, when a small majority of the twelve Judges decided against it. This interesting question merits much consideration. At present it is sufficient to say, that as from the nature of our Constitution, no new rights can be considered as created by it, but its operation more properly is the organization and distribution of a conceded power in relation to rights already existing, we must regard these provisions as at least the evidence of opinion, that such a species of property, both in the works of authors and in the inventions of artists, had a legal existence.
In some of the states, prior to the adoption of the general Constitution, acts of the legislature in favour of meritorious discoveries and improvements, had been passed; but their efficacy being confined to the boundaries of the states, was of little value, and there can be no doubt that, as soon as congress legislated on the subject, (which was as early as the second session, 1790,) all the state provisions ceased; although in the act of 21 Feb. 1793, it is cautiously provided that the applicant for the benefit of the protection of the United States, shall surrender his right under any state law; of which his obtaining a patent shall be sufficient evidence.
Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.
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