Founders On Patents: Jefferson On A Farm Patent

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.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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