The Patent and Copyright Clause, Article I, § 8m, cl. 8 provides  that “The Congress shall have power . . . “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This panel examines how, and whether, principles of constitutional originalism can apply to a clause, drafted in 1787 that has to apply to a huge range of transactions that were utterly unknown and unanticipated at the time of the founding.  The topics covered will include discussion of such timeless issues as to whether a system of limited government should create any patent and copyright protection in the first place; and how, if such intellectual property rights are created, they relate to protections afforded both to tangible property, and other forms of intellectual property including trade secrets and trade names; why the power to grant patents is given at the federal level; and the governance structures that are needed to implement protection for, and limitations on, copyrights and patents.  It will then extend the discussion to ask what changes, if any, are necessary to respond to the challenges of patents insofar as it relates to new technologies, new social media, and questions of national security.

We hope you will join us in-person or via live stream on the Federalist Society’s website from 1:45-3:15 pm ET Thursday, November 14.


  • Mr. Anthony J. Dick, Associate, Jones Day
  • Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
  • Prof. Richard A. Epstein, Director, Classical Liberal Institute and Laurence A. Tisch Professor Emeritus of Law, New York University School of Law; James Parker Hall Distinguished Service Professor of Law and Senior Lecturer, University of Chicago; and Peter and Kirstin Bedford Senior Fellow, Hoover Institution
  • Prof. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
  • Moderator: Hon. Ryan T. Holte, Judge, United States Court of Federal Claims