The Evolution of Intellectual Property Law in the United States

by Chelsea Wilson on September 19, 2013

Intellectual property law in the United States is as old as the country herself, with its roots planted firmly in the U.S. Constitution.

More specifically, Article 1, Section 8(8) provides:

The Congress shall have power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Thus creating patents and copyrights. Other federally approved intellectual property rights would follow later, arising first from state common law, such as trademarks and trade secrets.

Though the history of IP law in the U.S. is a topic that could easily fill an entire book, this post will try to provide a brief overview and then discuss a few notions of where American IP law might be headed in the future.

The Beginnings of U.S. IP law

The early years of U.S. intellectual property law stretch from 1787 (the year the Constitution was adopted) to the late 1800s, when international treaties began to change the shape of IP law.  In this era, the basic workings and boundaries of IP law were first staked out through case law, statues and regulations.

These include far-reaching rules like:

  1. The times for which exclusive rights could be granted,
  2. The basic kinds of items that could be protected and
  3. Important exceptions from protection.

But they also dealt with more mundane things like what information must be included with a patent application.

The first patent and copyright were each registered in this era. The first patent was granted to Samuel Hopkins, regarding a process of making potash, an ingredient used in fertilizer. The first copyright was registered to John Barry, for the title, The Philadelphia Spelling Book.

Some basic protections from this era are still standing, such as the prohibition on patenting an item already in public use (which arose from the 1829 case of Pennock v. Dialogue). Others, such as the law prohibiting foreigners from filing for patents without two years of residency, have since been abolished.

International Laws Arise

The Paris Convention for the Protection of Industrial Property is signed in 1883, with the United States joining a few years later in 1887.  While previous years had seen a shocking lack of protection for foreign creators, the Paris Convention signaled a shift into a new era of international cooperation that continues to evolve today, and is now more important than ever before. The Paris Convention, along with a number of other treaties, remains in effect, and is administered by the World Intellectual Property Organization, a major body for international IP interactions.  (Notably, the 1886 Berne Convention for the Protection of Literary and Artistic Works was not joined by the U.S. until 1989.)

The Modern Era

As industry and invention gathered steam through the 1900s, U.S. intellectual property law was revised in many ways to keep pace with practical realities. Courts had to grapple with genetically engineered organisms (patentable) and how to protect the first computer software (copyright), while ultimately dealing with the explosion of issues created by the Internet and globalization with respect to all three major branches of IP law: patent, trademark, and copyright.

The modern era has been marked not only by innovative companies seeking protection for “new” forms of IP, but also old companies seeking to maintain effective protection in the face of change.

The Future

Sadly, none of us can really tell what the future of American IP law holds. We can observe, however, the major recent events that will have a powerful effect on law going forward.

For example, the Leahy–Smith America Invents Act has switched the United States from a first-to-invent to a first-to-file system, and implemented a number of other changes that will have to be dealt with. Meanwhile, the Supreme Court’s recent decision in Assoc. for Molecular Pathology v. Myriad Genetics Inc. has dashed the hopes of biotech firms that hoped to patent particular genes, and they will no doubt endeavor to work around the Court’s language to find ways to protect their valuable research and the products thereof. And we can be sure that copyright holders will continue to wage legal battles over the inappropriate sharing of their protected content through the Internet.

Indeed, as technological advancements continue to change a variety of industries, we can anticipate one thing confidently: decision-makers in the field of IP law will be forced to confront new issues and find sensible (or not) ways for longstanding laws to meet new challenges.

Chelsea Wilson is the Community Relations Manager for Washington University School of Law’s online LL.M. degree program, @WashULaw, which provides foreign trained attorneys with the opportunity to earn a Masters in Law degree from a top-tier American university from anywhere in the world. Join the @WashULaw Community on Twitter.

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