DK,

Have it your way. Just understand that Jefferson was opposed to our Constitution being enacted and what he says about it (includingl what the Patent & Copyright Clause means) I take with a big grain of salt. I also consider Alexander Hamilton and especially James Madison’s views (having been at our Constitutional Convention and having written about it contemporaneously in the Federalist Papers) as far more relevant in interpreting the meaing of our Consitution (including the Patent & Clause) than anything Jefferson had to say who wasn’t there, and frankly despised it. If that bothers you, go pound salt.

Also, I thought we were addressing patent-eligibility on this thread, so I was addressing what our Founding Fathers would view Locke as having to say about how patent rights (or more appropriately “patent privileges”) fits into the the social contract doctrine. In that regard, what Madison had to say about that in Federalist Paper No. 43 is far more on point then anything Jefferson had to say. If that’s not what you intended by your quote to Locke, you’re way off the subject on this thread.

I haven’t heard of John Locke locking up (pun, yes intended) a trade mark in the words “natural” and “law”.

I thought you were referring to some form of laws of nature, which as you readily admit, can include survival of the most ruthless, evil and mean (not necessarily the “fittest” –could be a sadistically sick boy king who is anointed Caesar of Rome). It is man made laws of checks and balances that help us strain against the tidal forces of raw nature.

Same old dance.

Please familiarize yourself with the Constitution, the Federalist Papers and the biographies of the founding fathers. As it turns out, John Locke was nit a founding father and history clearly indicated what I said is true. If you want to ignore truth in yet another arena be my guest.

-Gene

DK,

If only SCOTUS would do so when it comes to interpreting the Patent & Copyright Clause, as witnessed by a very misguided passage in Graham v. John Deere that suggests this Clause imposes a constitutional standard for patentability that Congress cannot determine. Much of SCOTUS’ view on this Clause comes from Jefferson who not only didn’t attend the Constitutional Convention, but in fact despised the enactment of the Constitution (that’s not opinion but historical fact). I’m not denying that Jefferson was our first Commissioner of Patents, but his views on this Clause should be taken with a huge grain of salt. Instead, there are Founding Fathers who’s views are far more relevant, especially Alexander Hamilton and James Madison who authored the Federalist Papers (more on Madison’s views shortly).

This overzealous citation to what Jefferson says about the Constitution has unfortnately created the myth espoused by SCOTUS that is rightly called the “Jeffersonian story of patents.” See Adam Mossoff, “WHO CARES WHAT THOMAS JEFFERSON THOUGHT ABOUT PATENTS” who explodes this “myth” by doing his historical homework, including Locke’s views on the “social contract” as applied to patent rights (or more appropriately referred to as patent “privileges” in the 18th and 19th century context of that phrase and not how we currently interprete that phrase). In fact, Mossoff points out a little known fact which is that James Madison wrote the only know interpretation of what this Clause means in Federalist Paper No. 43:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point by laws passed atthe instance of Congress.

In debunking the critics of this Paper and their misinterpretation of Lockean philospohy, Mossoff says the following

These critiques miss the significance of Madison’s defense of the Copyright and Patent Clause and his connection of patents to copyrights, because they fail to account for the intellectual context of the Founding Era—the then-dominant natural rights philosophy and its social contract doctrine. As Jefferson wrote in 1825, the Declaration of Independence “was intended to be an expression of the American
mind” and “[a]ll its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.” Madison likely presumed that the readers of The Federalist Papers were aware of these basic principles, and thus he need not be pedantic, saving his lengthier explanations for the more novel ideas and institutions in the Constitution.

In setting this intellectual context, it is clear that the fulcrum of the justification of patents in The Federalist No. 43 is Madison’s claim that patents are justified “with equal reason” as common law copyrights. Madison was not alleging that patents were secured at common law, which he certainly knew to be false; rather, he was arguing that the reason why copyrights were secured at common law was the same reason why patents should be secured by federal statute. In other words, Madison was suggesting a connection between copyrights and patents in their policy justification, not in their technical legal status.

That “patent privileges” under ths Clause were viewed as significant “civil rights” (under Lockean philosophy) is further emphasized by Mossoff with the following statement which ties in to the “labor theory of property of natural rights philosophy and further elaborates on why Madison ‘s remarks on this Clause have been misinterpreted:

Madison’s justification for patent rights as privileges (civil rights) becomes even clearer once one recognizes the eighteenth-century justification for securing copyrights at common law: the labor theory of
property of natural rights philosophy. [For the purposes of breveity, I've omitted Mossoff's detailed description about Challcellor Kent's views ] By invoking the natural rights principle that one should reap the fruits of his labor—“mental as well as bodily labor”—Chancellor Kent also made explicit the policy justification for copyright that Madison invoked in The Federalist No. 43 as applying “with equal reason” to patents. In sum, Madison was not making a legal argument that patent rights were secured at common law—an argument that he surely understood as false—but rather he was justifying these civil rights with
the same labor-desert policy justifying the common law (natural right) in copyright. Without this context, of course, Madison’s brief remarks in The Federalist No. 43 are easily misinterpreted, or, at the very least, their
significance is lost on the modern reader who lacks the cultural context of the eighteenth and nineteenth centuries

Yes, it is important to understand the context of Lockean philosophy. I would strongly suggest you read Mossoff’s article (Cornell Law Review 92:953 (2007)) before you make any more general declarations about Lockean philosophy (as you just did) as it relates to patents. In particular, you should read pages 977-85 of that article (some of which I quoted from above) which discuss the “patent privilege” in Federalist Paper No. 43 and how the “patent privilege” was interpreted in early SCOTUS cases such as Wheaton v. Peters. You might find it “eye-opening.”

“John Locke (1632-1704), is among the most influential political philosophers of the modern period. In the Two Treatises of Government, he defended the claim that men are by nature free and equal against claims that God had made all people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property, that have a foundation independent of the laws of any particular society. Locke used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better insure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments. Locke is thus also important for his defense of the right of revolution.” from the Stanford Encyclopedia of Philosophy

and thus, Jefferson: “”The evidence of [the] natural right [of expatriation], like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophistical investigations of reason, but is impressed on the sense of every man.” –Thomas Jefferson to John Manners, 1817. ME 15:124

“Natural rights [are] the objects for the protection of which society is formed and municipal laws established.” –Thomas Jefferson to James Monroe, 1797. ME 9:422

“Some other natural rights… [have] not yet entered into any declaration of rights.” –Thomas Jefferson to John W. Eppes, 1813. ME 13:272

“I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” –Thomas Jefferson: Reply to Danbury Baptists, 1802. ME 16:282

and then remarking on patents and natural law: “By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – –Thomas Jefferson, letter to Isaac McPherson, 13 August 1813

or Abraham Lincoln on natural law, which was his justification for the emancipation, despite the positive law of the Constitution: “I have never said anything to the contrary, but I hold that notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty and the pursuit of happiness. I hold that he is as much entitled to these as the white man.” The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume III, “First Debate with Stephen A. Douglas at Ottawa, Illinois” (August 21, 1858), p. 16

yes, laws, codes, and other positive laws are fallible, and in this case contrary to natural law, which is exactly what those of us who are trying to correct the error of gene patents recognize.

I don’t really understand what you are trying to say. It seems like you are quibbling with my characterization of the founding fathers, which is ridiculous because what I said is true and easily verifiable.

Really, were you challenging what I said? You do realize that while you may be able to fool some people with your junk science, you really can’t expect anyone to ignore historical truth, do you?

-Gene

The FF’s (Founding Fathers) were not gods. They were mortal fallible men!
They owned slaves and drank tea without biscuits for bloody sake!

They understood that all men are fallible. That’s why they established a system of checks and balances. (They didn’t intend for later Americans to see that as blank checks and infinitely re-balanced budgets, but that’s a story for another time.)

The Founding Fathers did understand however, that men are greedy. That description applies both to those who create inventions and those who steal inventions (take without just compensation). That is why the FF’s empowered Congress to create a patent system that grants exclusive and enforceable rights for **limited** times.

The FF’s had no intention of creating a utopia based on some crazed notion of “natural rights”.

If you want “natural rights”, move to North Korea. That’s the place where the biggest and baddest war lord takes over as total authoritarian control (unchecked and unbalanced control) over the poor enslaved and malnourished peasants of that country. That is very “natural”, namely, survival of the meanest SOB in the valley of the shadows. Thankfully, in this country, we do not yet walk through that valley of the shadows and we do not yet fear all evils.

Washington, Jefferson, Franklin, Madison, etc. weren’t business class elites? The guys who made land ownership a requirement for voting rights and who decided to scrap the Articles of the Confederation without telling the public? Seriously?