When James Madison and friends gathered in Philadelphia in 1787 to draw up a Constitution for the United States, the question whether the new federal government should be empowered to grant monopolies to inventors (namely, patents) was not a matter of high interest. It was known that in England the issuance of so-called "letters patent" promoted significant advances in technology. In 1769, for example, the king granted patents to James Watt covering an improved steam engine and to Richard Arkwright for a cotton spinner. At the same time, several of the American colonies adopted the practice of issuing patents to inventive local citizens. There was not, however, an organized program for the encouragement of invention. 

One of the delegates to the convention, Charles Pinckney of South Carolina, thought that an exclusive federal power to grant such monopolies would do much to promote American technology. His proposal was promptly accepted. In the result, the powers granted to Congress by the convention included the constitutional authority 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 Discoveries." Art. I, § 8, cl. 8. Madison thought that the "utility of this power will scarcely be questioned," for the "States cannot separately make effectual provision" for the regulation of patents. The Federalist No. 43. It was unnecessary to say more.

Prompted by President Washington himself, Congress exercised its new power under the patent clause, enacting a law on the subject as early as 1790. After amendment, the statute made it clear that the invention must be "new and useful"; it was implicit that it must also be "nonobvious."

The first federal patent was immediately granted to one Samuel Hopkins of Vermont for a process for the manufacture of pot and pearl ash. The same year, 1790, Jacob Perkins of Massachusetts invented a machine that, in one operation, would cut and head nails. During the next years, John Fitch patented a steamboat. Eli Whitney’s famous cotton gin followed in 1794; it revolutionized the course of Southern agriculture. The value and practical application of each of these inventions was plain to see.

The 19th century witnessed rapid development of inventions responsive to the nation’s economic expansion. William Howard patented a locomotive with a multitubular boiler in 1828, and Cyrus McCormick patented his reaper in 1834. Other advances included Samuel Morse’s telegraph (1832), Samuel Colt’s revolver (1835), John Deere’s steel plow (1837), Charles Goodyear’s vulcanization of rubber (1839), Elias Howe’s sewing machine (1846), Alexander Graham Bell’s telephone (1876) and Thomas Edison’s incandescent bulb (1879). The number of patents rose from 600 in 1840 to 26,000 in 1900. A metaphor of the time reflected the phenomenon: The poet James Russell Lowell saw the Constitution as a "machine that would go of itself" (1888). (As a graduate of the Harvard Law School, he should have known better).

As the 20th century dawned, plastics, such as rayon, were patented (1902). Elmer Sperry followed with his gyrocompass, patented in 1911. Rockets, the helicopter, radar, thermonuclear reactions and aids to the space age followed. A comparison between the number of leading patents issued in 1990 and in 2010 in several fields is instructive: For communications, 414 versus 7,416; for transistors and such devices, 960 versus 6,908; for semiconductor manufacturing, 603 versus 6,142; for medical drugs, 2,355 versus 4,686; and for computers, 49 versus 4,648. The World Almanac 2012. Once a door was opened, a crowd rushed in. Compared to prior achievements, the complexity of 20th century invention outgrew the practical grasp of ordinary citizens.

Inventors seeking patents were bedeviled by a question, however. The Constitution and the statutes required true invention. The courts took the view that the concept implied creative acts by men and not mere manifestations of nature.

The Supreme Court, as early as Le Roy v. Tatham (1852), and as recently as Mayo Collaborative Services v. Prometheus Laboratories Inc. (2012) and (Association of Molecular Pathology v. Myriad Genetics Inc. (June 13, 2013), held that laws of nature, natural phenomena, and abstract ideas are not patentable. Hence, neither Newton’s law of gravity nor Einstein’s E=mc2 would be patentable," nor (said the U.S. Supreme Court in Mayo) could a newly discovered mineral or a new plant found in the wild. But it was also said that "an application of a law of nature or mathematical formula to a [foreign] structure or process" might be protected. Diamond v. Diehr (1981). Between these pliant limits, monopoly and, perhaps, riches lay. The Mayo case illustrates the problem. Here was a patent covering a processor that doctors use to test a drug for colitis, thiopurine, to determine whether a given dose was too low or high. Although the Prometheus firm held a patent on the test, the Mayo Clinic decided to use its own, similar test. Prometheus sued. The Supreme Court held that the Prometheus test simply used natural correlations between certain metabolites in the blood and thiopurine to determine the drug’s effectiveness. Such correlations, the court said, were natural relationships, not invented by anyone. To countenance such patents would slow, rather than advance, the growth of technology. The patent was invalid, said a unanimous court. Many in the medical profession agreed.

Similarly, in Myriad Genetics, the Supreme Court has just ruled that patents on the isolation of a naturally occurring human gene were invalid because "separating that gene from its surrounding genetic material is not an act of invention." In that case, "Myriad discovered the precise location and sequence of what are now known as the BRCA1 and BRCA2 genes. Mutations in these genes can dramatically increase an individual’s risk of developing breast and ovarian cancer.…Once it found the location and sequence of the BRCA1 and BRCA2 genes, Myriad sought and obtained a number of patents." The court explained that "Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes ‘new . . . composition[s] of matter’…that are patent eligible."

The distance travelled by the Supreme Court — and the nation — from, say, a 19th-century patent on a rubber-tipped pencil (Rubber-Tip Pencil Co. v. Howard (1874)) to a patent on the isolation of a naturally occurring human gene (Myriad Genetics) is immense, a measure of the distance travelled by the nation’s technology itself. It is fair to conclude that further invention is likely to take us into realms of unimaginable sophistication.

Joseph D. Becker is a founder of Becker/Glynn, a Manhattan law firm.