A Brief History of the Development of Intellectual Property Law in the United States

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The development of intellectual property law in the United States has followed the development of society within the United States from a primarily agricultural society during the 1700’s to today’s technological society. The development of intellectual property law in the United States has also followed the development of American law in general. As America moved into and through the Industrial Revolution of the 1800’s, intellectual property laws became more and more numerous and stringent as people and industry worked to safe guard their money making ideas and products. The explosive use of the internet in today’s society has added an entirely new wrinkle to protection of concepts and ideas and products in the market place.

Black’s Law Dictionary defines intellectual property as “a category of intangible rights protecting commercially valuable products of the human intellect.” (Black's Law Dictionary 1999, 813) Many times these can apply to intangible items like ideas but can also include tangible items like the Model T Ford of Henry Ford. The term intellectual property is a relatively new term but the concept of what intellectual property is has been around for many years. The term intellectual property encompasses copyrights, patents, and trademarks.

Copyright laws “protect ‘original forms of expression’ – Magic Mountain, ‘Star Wars,’ ‘Fiddler on the Roof’.” (William W. Fisher 1999, 1) Trademarks apply to protection of a word or phrase or symbol used to guarantee a product’s genuineness. (Black's Law Dictionary 1999, 1500) The Nike “swoosh” and the “three stripes” of adidas are examples of trademarks. Patent is defined by Black’s Law Dictionary as “[t]he exclusive right to make, use or sell an invention for a specified period of time granted by the federal governmental to the inventor if the device or process is novel, useful and nonobvious.” (Black's Law Dictionary 1999, 1147) An example of a patent would be Thomas Edison’s light bulb patent which was granted in 1880 for his exclusive use.

The origins of patent law and copyright law can be found in British Statute of Anne and the Statute of Monopolies. The Statute of Anne dealt primarily with copyright regulation and is a "watershed event in Anglo-American copyright history, transforming what had been the publishers' private law copyright into a public law grant.” (Patterson and Joyce 2003) This act was later repealed. The Statute of Monopolies dealt with patent laws and was the first statutory patent law, as all previous patent laws were based on customs.

In the United States, the primary power to create and enforce intellectual property law was vested with the Federal Government. “The Constitution (Art. 1, sec. 8) gave Congress power ‘[t]o promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ This was the formal source of federal power over patents and copyrights” and later all intellectual property. (Friedman 1973, 1)

The Framers of the Constitution knew well the restrictive patent laws of England and looked to depart from the shortcomings of the British system. It was also a goal to encourage new ideas and inventions which would add to the overall economy of the Colonies and expand their economic standing and overall standard of living.

Accordingly, in April of 1790 the first patent legislation was passed by Congress, the Patent Act of 1790. Prior to that act, patents were granted by the individual colonies. The powers of the 1790 Act to grant patents were given to the Patent Board which was made of three members; Secretary of State (Thomas Jefferson), Secretary of War (Henry Knox) and the Attorney General (Edmund Randolph). The court system was responsible for the administration of patent infringement. The original act was quickly amended, due mostly to the urgings of Secretary of State and amateur...
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