104 Iowa L. Rev. 2591 (2019)

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Abstract

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 (“public rights”), because this determines how constitutional guarantees apply to patents in administrative proceedings. In Oil States v. Greene’s Energy, the Supreme Court held for the first time that patents are public rights that may be canceled by an administrative tribunal solely because patents are “creatures of statute.” This classification of patents as public rights solely given their statutory provenance is profoundly mistaken. Modern courts and commentators have misconstrued a heuristic used by earlier courts 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 property rights in land and in inventions. This Essay surveys these well-known sources of property rights in both statutes and judicial decisions, revealing that conflating “common law” with private property rights is legal myth, not 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 vested private property rights to administrative processes and decrees.