I am not familiar with the details in Stanford v. Roche, but this passage from Justice Breyer’s dissent on the value of patents seemed worth excerpting. Whenever Breyer reaches back to Thomas Jefferson, I take note.
But patents sometimes mean unnecessarilyhigh prices or restricted dissemination; and they some-times discourage further innovation and competition by re-quiring costly searches for earlier, related patents or bytying up ideas, which, were they free, would more effec-tively spur research and development. See, e.g., Labora-tory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U. S. 124, 128 (2006) (BREYER, J., dissenting from dismissal of certiorari as improvidently granted); Heller & Eisenberg, Can Patents Deter Innovation? TheAnticommons in Biomedical Research, 280 Science 698 (1998).
Thus, Thomas Jefferson wrote of “the difficulty of draw-ing a line between the things which are worth to the pub-lic the embarrassment of an exclusive patent, and those which are not.” Letter to Isaac McPherson (Aug. 13, 1813), in 6 Writings of Thomas Jefferson 181 (H. Washing-ton ed. 1854). And James Madison favored the patent monopoly because it amounted to “compensation for” acommunity “benefit.” Monopolies. Perpetuities. Corpora-tions. Ecclesiastical Endowments., in J. Madison, Writings 756 (J. Rakove ed. 1999).
The importance of assuring this community “benefit” isreflected in legal rules that may deny or limit the award of patent rights where the public has already paid to produce an invention, lest the public bear the potential costs ofpatent protection where there is no offsetting need forsuch protection to elicit that invention. Why should thepublic have to pay twice for the same invention?
Update: For a contrary view about Jefferson’s understanding of patent policy, see Adam Mossoff’s 2007 Cornell Law Review article, titled Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context. Here is the abstract:
The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson’s writings on patents. Using ‘privilege’ as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders’ writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. In the antebellum years, patents were civil rights securing important property rights — what natural-rights-influenced politicians and jurists called ‘privileges.’
This intellectual history situates the Copyright and Patent Clause, the early patent statutes, and nineteenth-century patent case law within their appropriate political and constitutional context. In so doing, it resolves many conundrums arising from misinterpretation of the historical patent privilege. Doctrinally, it explains why Congress and courts in the early nineteenth century expansively and liberally construed patent rights, and did not limit patents in the same way they narrowly construed commercial monopoly grants, such as bridge franchises. It also exposes the near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today. Ultimately, the conventional wisdom is a historical myth that obscures the early development of American patent law under the meaningful guidance of natural rights philosophy.