To address limitations on the promotion of the progress of the useful arts, the Framers provided a Constitutional grant in the Patent Clause. They did so despite Thomas Jefferson’s concerns. However, limitations on the promotion of the useful arts continue today, often in very subtle ways. The evolution of dual-ladder corporate organizations as described in Martens has given rise to one such limitation—the phenomenon identified as the “Dilbert boycott.” Also, financially lucrative markets can give rise to abusive limitations on the promotion of the useful arts as in Synthroid. Combining these limitations with Thomas Jefferson’s fears of even limited monopolies points to the need for vigilance in insuring that the rights and policies behind the Constitutional grant are not eroded. Starting with the ideas of Thomas Paine, an inventor and contemporary of the Framers, this Comment identifies five key principles underlying the Constitutional grant in the Patent Clause. To apply these principles, there must be a high degree of definiteness where ideas are exchanged for rights in intellectual property, particularly in the context of technical employment agreements.
Ronald E. Andermann, Employee Inventors, the Dual Ladder, and the Useful Arts: From Thomas Paine to the "Dilbert Boycott", 1 J. Marshall Rev. Intell. Prop. L. 310 (2002)