Divergent Evolution of the Patent Power and the Copyright Power
Patent and copyright law in the United States derives from a constitutional grant of power to Congress, which drafted the Patent and Copyright Acts. The U.S. Supreme Court has addressed the meaning of various terms in the Patent and Copyright Clause, but only addressed the constitutionality of a copyright statute in 2003. The Court has never considered the constitutionality of a patent statute. The purpose of this article is to explore Congress' and the courts' diverging interpretations of the patent and copyright powers. It explores the reasons for this divergence, tracing the historic kinship between the two powers from the early days of the Republic. It also examines the expansive growth of the copyright power for asking if there is some fundamental difference in the intellectual efforts of authors, or in the value of their efforts to society, that somehow justifies the scope afforded it in the modern era.