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Repealing Patents

Posted by on Saturday, March 30, 2019 in Articles, Volume 72, Volume 72, Number 2.


The first known patent case in the United States courts did not enforce a patent. Instead, it sought to repeal one. The practice of cancelling granted patent rights has appeared in various forms over the past two-and–a-quarter centuries, from the earliest U.S. patent law in 1790 to the new regime of inter partes review and post-grant review. With the Supreme Court’s recent scrutiny of the constitutionality of inter partes review, this history has taken on a new significance.

This Article uses new archival sources to uncover the history of patent cancellation during the first half-century of American patent law. These sources suggest that the early statutory provisions for repealing patents were more widely used and more broadly construed than has hitherto been realized. They also show that some U.S. courts in the early Republic repealed patents in a summary process without a jury, until the Supreme Court halted the practice. Each of these findings has implications—though not straightforward answers—for the new constitutional questions surrounding patent cancellation.

Christopher Beauchamp