Dotan Oliar (University of Virginia School of Law) has posted The (Constitutional) Convention on IP: A New Reading (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:
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All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that hitherto neglected portions of the Framers’ debates are relevant to interpreting it. Its findings shed light on four unsettled questions of constitutional interpretation: they provide qualified support for the constitutionality of business method patents, patents for products of nature, and copyright protection for unoriginal factual compilations, and suggest that the IP Clause should be read as one unit rather than two distinct and independent powers for copyrights and patents.
Although I approached this article with some skepticism, I am now convinced that Oliar's analysis must be taken seriously and is sure to spark further debate. Highly recommended. Download it while its hot!