104 Iowa L. Rev. 2559

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Abstract

I revisit one of the earliest administrative functions of the United States government, the granting of patents, to show why the U.S. Patent Office fits so poorly with the contemporary model of an Executive Branch agency in the modern Administrative State. In parallel with other early “proto-agencies” the Patent Office participated in the most important job of the new national government: economic development. Because of the importance of this policy, and the limited power of the new federal government, Congress, courts, and the executive branch emphasized concerted action rather than separation of powers.

The Patent Office had been performing its basic function for nearly one hundred years when the modern “administrative revolution” began its sweep though the federal government. The modern administrative state was created to counterbalance the emergent power of large, concentrated industries; it had little relationship to the original Patent Office mandate from Hamiltonian times. As a consequence, contemporary administrative law is a poor fit for the Patent Office. Administrative law, especially the Administrative Procedure Act (“APA”), governs power relations between federal agencies and the industries they regulate, with courts often acting as referee. But the Patent Office grants government-sanctioned property rights to dispersed inventors in an extremely wide variety of industries, and lets private investment, transactions, and enforcement take over. Since its founding, the Patent Office has been charged not with regulating concentrated industry, but with handing out a small dollop of state power to dispersed parties in the form of individual property rights. Although some features of the modern administrative apparatus surely apply to the Patent Office it is overall best left to the looser-fitting understandings of the Hamiltonian economic development state.