Patents under the Commerce Clause
![handle is hein.journals/jpatos44 and id is 152 raw text is: Journal of the Patent Office Society
Patents Under the Commerce Clause
By ELIMO GERBER *
Traditionally it is said that the patent laws are based
upon and limited by Art. I, Section 8, Clause 8, of the
Constitution, called The Patent Clause. This is nat-
ural; for the wording of the patent clause seems to sup-
port those who would restrict the patent system and at
the same time provides a constitutional basis for those
who would preserve the system.
This article will indicate that the patent laws can be
based on Art. I, Section 8, Clause 3, of the Constitution,
the commerce clause as well as the patent clause. A
shift of viewpoint, from justifying patents on the basis
... the progress of Science and useful Arts . . . to the
more mundane and objective test of aiding commerce,
may even be beneficial.
The viewpoint advanced here should be approached
with that caution which novel theory deserves. In miti-
gation, it is suggested that this viewpoint may engender
a more liberal view toward patents.
An outline will be presented of the historical reasons
for reliance on the patent clause, the practical effect
of such reliance, the legal rationale for viewing the patent
laws as being under the commerce clause and some pos-
sible effects of that viewpoint.
Why the Patent Laws Ifavc been Thought to be Under
the Patent Clause
The patent laws have been considered to have been
enacted under the patent clause of the Constitution
because of its language.
The Congress shall have power ... to promote the progress of
Science and useful Arts, by securing, for limited Times, to
Authors and Inventors the exclusive Right to their respective
Writings and ])iscoveries.
* Member, Bars of Michigan, New York and Dist. of Col. A.B. (1950),
J.D. (1953), L.L.M. (1955), L.L.M. (1957).](ViewImageLocal?handle=hein.journals/jpatos44&div=32&collection=&method=preview&ext=.png&size=3)
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Patents under the Commerce Clause
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