In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson continued to make guest appearances in Court decisions for the next twenty years.

In using Jefferson as the sole source of early American patent law policy, the Court and scholars have created an historical myth... Lawyers and intellectual property scholars have been using the Jeffersonian story of patent law in claiming that historical authority undoubtedly supports a more restrictive, limited approach to intellectual property doctrines today... Scholars use the Jeffersonian story of patent law as an undisputed descriptive baseline for critiquing recent expansions in intellectual property rights, which they call the “propertization” of intellectual property.

The Jeffersonian story of patent law is a potent historical claim because it contains a kernel of truth. There were antebellum politicians and jurists who viewed patents as “odious monopolies” that were granted to inventors given only their social utility.

Mossoff puts in proper context the misunderstanding of patents as "specially conferred legal privileges," as if patents were extraordinary. In legal language, the term "privilege" was used then as the common word "right" is used today, though today the words are practically antonyms.

In early American history, legal privileges comprised many fundamental rights, such as due process rights, property rights, and even patent rights... [S]ocial contract doctrine and a labor theory of property defined early American patent rights as privileges... [P]rivilege was a legal term of art in the eighteenth and nineteenth centuries that referred to a civil right justified by natural rights philosophy.

Jefferson’s justification for patents is forward looking. He forcefully advanced the utilitarian and economic justification of the patent system—the primary justification for patents today.

John Locke's theory of the "social contract" as determining responsibilities and rights in civil society was a philosophical cornerstone of American democracy. A natural right was inalienable, such as the right to own property. Civil rights pertained to non-natural privileges, such as the ground rules for contracts and transferring property, or right to a trial by jury.

In this way, the social contract doctrine of natural rights philosophy explained the complex relationship between the privileges and immunities—civil and natural rights—secured to individuals in civil society... The most significant example of a Founder distinguishing between civil and natural rights was Madison’s remarks in introducing in Congress the bills that would eventually become the Bill of Rights... Most legal professionals today are aware of the broad outlines of John Locke’s theory of natural rights and its attendant social contract doctrine that dominated early American politics... Working under the social contract doctrine in the eighteenth and nineteenth century, scholars, jurists, and politicians came to refer to those rights that arose as a consequence of the social contract as privileges.

In historical context, "right" was shorthand for "natural right", while "privilege" meant "civil right".

[E]arly American courts used privilege to refer to those rights that necessarily flowed out of the social compact and thus were secured under express law in civil society. In 1809, Chief Justice Marshall referenced the “privileges of contracts,” which would be common identification of contract rights in Supreme Court decisions throughout the nineteenth century... Chief Justice Marshall and Justice Washington’s references to these fundamental rights as privileges flowed directly from their acceptance of the basic tenets of the ubiquitous social contract doctrine of their day. This was merely the technically precise way of identifying those rights conferred, defined, and secured in civil society, and one can find many examples in antebellum case law reflecting this usage of privilege.

The necessity of intellectual property rights was so accepted that the original patent and copyright clause in the constitution passed without any debate, and so with almost no historical record. As Madison noted in The Federalist No. 43, "The utility of this power will scarcely be questioned."

This was one of the few provisions of the Constitution that passed without any debate at the Constitutional Convention, and thus nothing was said there indicating the truth of either the Jeffersonian story of patent law or the social contract doctrine justification of natural rights philosophy.

Madison’s purpose in justifying patents as privileges on par with other civil rights, such as the right to a jury trial, is further established by his concluding remark in The Federalist No. 43 that the “states cannot separately make effectual provision” for either copyrights or patents. In other words, these privileges can only be secured effectively through national, as opposed to state, legislation. Here, the presumption of patents as privileges—rights secured expressly by legislation—is complete.

Madison and Jefferson corresponded on intellectual property rights, with some of Madison's remarks more ambiguous than his public declaration.

The disconnect between Madison’s public remarks in The Federalist No. 43 and his private notes and correspondence is intriguing... Perhaps Madison was more willing to be honest with Jefferson, particularly in private correspondence, than he was in debating Anti-Federalists whether the Constitution should be ratified by the states.

If true, though, this criticism cuts against the Jeffersonian story of patent law, as it confirms a key point in the earlier analysis of patent privileges within the social contract doctrine of natural rights philosophy. The exchange between Jefferson and Madison raises a very interesting question: Assuming that Madison agreed with Jefferson’s view of patents and copyrights, then why did he not repeat the content of his letter to Jefferson when he justified the Copyright and Patent Clause in The Federalist No. 43? It is possible that he did not do so because New Yorkers (and other Americans) would not have found such arguments compelling; they may have disagreed with the central premise of the Jeffersonian story of patent law that patents were odious monopoly privileges saved from condemnation because of their social utility. They did not agree with the Jeffersonian story of patent law because the arguments that Madison made in The Federalist No. 43 resonated with their pre-existing ideas. In other words, this confirms that natural rights philosophy and its social contract doctrine defined the basic social and political norms of early American society. The Jeffersonian story of patent law survives today in court opinions and scholarship precisely because it represents an historical claim about the public understanding of patent law. If Madison recognized that his public statements had to be framed in natural rights terminology, even if he personally disagreed with such arguments, then this only indicates the degree to which the Jeffersonian story of patent law indeed takes elements of the historical public record out of context.

Mossoff summarizes the broad context by which patents were treated in early American history.

Congress and courts construed patents as privileges: They were civil rights in property afforded expansive and liberal protection under the law. This is evidenced by the reliance on property case law and rhetoric in patent cases, the development of legal presumptions favoring liberal interpretation of both the patent statutes and patents, and, lastly, in the judicial recognition of additional rights beyond those expressly provided in the patent statutes... Throughout nineteenth century patent law jurisprudence, courts reaffirmed their view of patents as civil rights on par with contract and property rights similarly identified as privileges. One circuit court, for instance, held that an assignment of patent rights to a third party required the court to recognize that “the patentee grants the exclusive local privilege to the utmost and fullest extent.” Reflecting that privilege was a basic norm of legal discourse, this court repeatedly referred to the patent rights conferred by the assignment contract as “the local privilege.”.. [R]eferences to patents as property are omnipresent in nineteenth-century patent law jurisprudence. Courts thus accused patent infringers of committing trespass, and, even more common, piracy... Congress (with support from the Supreme Court) adopted substantively expansive patent doctrines, such as extending patent terms. In sum, patents historically were treated quite differently from traditional legal monopolies granted to American citizens, such as bridge franchises, which were treated suspiciously by the Supreme Court and, appropriately, narrowly construed against the grantee.

None of this has been discussed in modern court opinions, intellectual property scholarship, or historical studies... [A] sound appreciation of the history of American patent law matters so that scholars and lawyers are careful not to use bad history as a substitute for careful normative policy arguments.