Last week, I covered a newly digitized letter from John Q. Adams, describing the concern the PTO’s first Commissioner had regarding whether the patents he was issuing were really valid and the harms that those invalid patents were causing.
Along those lines, let’s see what another Founding Father—Thomas Jefferson—had to say about a patent on a farm machine.
“The improver has obtained a patent for his improvement, tho’ I doubt the validity of it, as there is no new invention, but only a bringing together two things in full use before.”
Two hundred and ten years later, in KSR v. Teleflex the Supreme Court reiterated this point, holding that there’s no patentable invention when two known things are combined in the normal way.
So when you hear someone talk about the patent system our Founders created, remember that the Founders were themselves frequently quite skeptical of that patent system. The patent system has the potential to incentivize invention—but when the PTO issues patents on old inventions or when patents are used to threaten ideas that aren’t actually covered by the patent, that potential is left untapped.