![]() ![]() private law model for their patent systems, such as providing enforceable property rights that are alienable in the marketplace for commercial development. ![]() By the late nineteenth century, there was some convergence among jurisdictions, as other countries adopted aspects of the U.S. ![]() patent system generally diverged from the English patent system as a matter of institutional design by defining patent rights largely within the domain of private law. ![]() A single article cannot address all historical and institutional details, but, as historians and economists have recognized, the U.S. This key distinction is often obscured by the oft-repeated judicial gloss about the provenance of the U.S. It is the core difference between defining a patent, on the one hand, as a private property right or, on the other hand, as a regulatory entitlement-between securing rights through private law doctrines and legal institutions constrained by the rule of law versus granting rights as matters of public policy and through discretionary decision-making processes in the political organs of the government. This diverge nce reflected a fundamental choice in institutional design. patent system was a legal system in transition, but with the first Patent Act of 1790, there were fundamental differences between the U.S. Its patent system represented the same fundamental break from the English patent system as other U.S. retained aspects of the English political and legal systems, such as the common law, but it also implemented innovative structural and substantive changes in its new political and legal institutions. This is undeniably true-just as it is undeniably true that the American republic arose from the English constitutional monarchy and parliamentary system of government. patent system arose from the English practice of the Crown conferring commercial monopoly privileges under its prerogative power. Institutional Design in Patent Law: Private Property Rights or Regulatory Entitlements ![]()
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