Mossoff on Patents as Private Rights

Adam Mossoff, George Mason University Antonin Scalia Law School, has posted Statutes, Common-Law Rights, and the Mistaken Classification of Patents as Public Rights, which is forthcoming in the Iowa Law Review:

Patents are increasingly swept up into the operations of agencies in the modern administrative state. This has raised anew the fundamental question whether patents are private property rights or special privileges, because this determines how constitutional guarantees apply to patents in administrative proceedings. If patents are private rights, full constitutional protections apply to them, such as the guaranty of due process. If patents are special privileges — deemed “public rights” — then they may be redefined or eliminated by the discretionary processes of administrative tribunals, such as the Patent Trial & Appeal Board. Today, courts and commentators reduce this fundamental legal classification to whether a right is born of a statute (public right) or a court decision (private right). They thus conclude that patents are public rights because they are “creatures of statute” enacted by Congress as authorized by the Constitution.

The classification of patents as public rights solely given their statutory provenance is profoundly mistaken. Modern courts and commentators have misconstrued one heuristic used by earlier courts as part of a broader inquiry in distinguishing between private rights and public rights. It was only a heuristic because all legal rights share mixed origins in both statutes and judicial decisions, including both property rights in land and in inventions. This Article surveys these well-known sources of property rights in both statutes and judicial decisions, revealing that conflating “common law” with private property rights is more legal myth than historical fact. As cases proliferate at the intersection of patent law, administrative law, and constitutional law, it is a fundamental error to classify patents as public rights in relegating these vested private property rights to the vagaries of administrative processes and decrees.