Institutional Choice & Interest Groups in the Development of American Patent Law: 1790–1865

Abstract

This article analyzes the evolution of U.S. patent law between the first patent act in 1790 and 1865. We argue that this evolution is best understood through an interest group-based analysis, focused on the question of the choice of which institution interest groups select in their efforts to alter the law. Although the federal courts have generally been viewed as relatively costly to capture, we contend that the early nineteenth-century federal bench was often less costly for pro-patent interests to influence than the contemporaneous Congresses. The heavy reliance on the courts during this crucial period of patent law’s evolution thus makes sense.One major and several minor patent statutes were enacted, as well. Interest groups turned to Congress for two reasons. First, despite the general agreement between bench and bar on the appropriate evolutionary path for patent law, there remained in American law a powerful strain of anti-monopoly thought, hostile to patents. Although most patent cases ended up being litigated before sympathetic judges by the skilled patent bar, not every patent case did so and the proportion being litigated outside the small strata of experienced judges grew over time. Additionally, because of the “democratic” nature of patent practice, patent law touched individuals spread across the country and made litigation before judges with an anti-monopoly orientation a real risk. Interest groups therefore turned to Congress on occasion to “lock in” changes in the law that they had achieved through the courts. They also sought Congressional aid in correcting occasional dead-ends reached in the law’s development.