By Dennis Crouch
The 18th Century French Encyclopédie of Diderot & d’Alembert was an important and well-known encyclopedia available at the founding of the U.S. and well known to founding fathers, including Madison and Jefferson. The link with Madison is important since it was Madison who proposed the intellectual property clause of the U.S. Constitution – giving Congress the power to award exclusive rights for limited times. One element of the clause that has long confounded patent scholars is the meaning of “Discoveries.”
The clause: [Congress has the 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 Discoveries.
Seemingly taking its lead from the Constitution, Congress enacted that patent statute that awards rights to one who “invents or discovers.” In today’s usual parlance, a discovery is often thought more as an unearthing rather than a creation. That is confounding because of the newness requirement of patentability and the ban on the patenting of natural phenomena.
In a recent article, Professor Sean O’Connor (UW) argues that the Encyclopédie offers a key to understanding the meaning of Discovery as used in the Constitution. See O’Connor, The Overlooked French Influence on the Intellectual Property Clause (2014). His approach is a departure from the more traditional Anglo-centric view on constitutional history. A review of the translation leaves little doubt that the source is important. In particular, the ~2,000 word entry on discoveries begins as follows:
Discovery: In general this name can be given to everything that is newly found in the Arts and the Sciences; however, it is scarcely applied, and ought not to be applied, except to that which is not only new, but also curious, useful, and difficult to find, and which, consequently has a certain degree of importance. The less important discoveries are simply called inventions.
[Link to translation]. With that contemporary definition in mind, we can take it as important that the founders used the term “Discoveries” rather than “Inventions.” O’Connor argues that Discovery as found in the Constitution is consequently higher standard than mere novelty. The Encyclopédie include additional entries on “Art,” “Science,” “Inventions,” and “Writers/Authors,” and O’Connor takes these together to begin a new and interesting conversation on the meaning of the intellectual property clause.