Patent law today is a complex institution in most developed economies and the appropriate structure for patent law is hotly debated around the world. Despite their differences, one crucial feature is shared by the diverse patent systems of the industrialized world even before the recent trend toward harmonization: modern patent regimes include self-imposed restrictions of executive and legislative discretion, which we refer to as "constitutionalized" systems. Given the lucrative nature of patent monopolies, the long history of granting patents as a form of patronage, and the aggressive pursuit of patronage in most societies, the choice to confine patents within a legal framework that minimized the potential for gain by current office holders requires explanation. Why choose to constitutionalize patents?

The Copyright Office has submitted a report to Congress outlining the extent of the orphan works problem and recommending a legislative solution. This article proposes a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense.