James Madison is credited with introducing the Patent and Copyright Clause to the Constitution, and defended that clause in Federalist 43, stating “[t]he utilityAn invention must useful to be patentable. Very few inventions are invalidated as lacking utility. Perpetual motion machines, for example, are typically found invalid for lacking utility. of this power will scarcely be questioned.” But he was well aware that there were dangers to the power, writing in his own papers that the patent monopoly could produce more evil than good.
But it wasn’t just in his private papers that Madison referenced the potential problems patents can create. In the letter to Congress in which he, as President, recommended the establishment of a separate patent office within the Department of State, he also noted those dangers, saying he recommended “further guards [be] provided against fraudulent exactions of fees by persons possessed of patents.”
As new members of Congress prepare to take their seats, they should consider carefully the advice given by Madison—that the utilityAn invention must useful to be patentable. Very few inventions are invalidated as lacking utility. Perpetual motion machines, for example, are typically found invalid for lacking utility. of patents is unquestioned, but that abuses of patents can produce negative consequences outweighing that utilityAn invention must useful to be patentable. Very few inventions are invalidated as lacking utility. Perpetual motion machines, for example, are typically found invalid for lacking utility. unless carefully constrained.
