|
|
|
|
Limits to Regulation Due to Interaction of the Patent and Commerce Clauses
By Paul A. Ballonoff
Introduction
The U.S. Constitution was written with the market revolution in England in mind, in which the power of the Crown to establish economic monopolies, then known generally as patents, was severely restricted by the 1624 Statute of Monopolies. The patent power then was a very general power to intervene in commerce and allocate markets. Thus, the commerce clause, the patent clause, and the welfare language have a common origin. Following the 1624 Parliament's precedent, the Constitution gives the federal government only the highly restricted patent power that we know today by that name. This result implies that much of the commerce power as currently understood was specifically proscribed. These arguments suggest that much current federal economic regulation requires exercise of a general patent power that the federal government does not possess, and may thus be unconstitutional.
Full Text (PDF, 23 pages, 90 KB)