Document Type

Working Paper

Publication Date

1-25-2018

SSRN Discipline

LSN Subject Matter eJournals; Innovation Disciplines eJournals; ERPN Subject Matter eJournals; Financial Economics Network; IRPN Subject Matter eJournals; Intellectual Property Law eJournals; Management Research Network; Innovation Research & Policy Network; Economics Research Network; Legal Scholarship Network; Entrepreneurship Research & Policy Network; Law School Research Papers - Legal Studies; Corporate Governance Network; Law & Society eJournals; Law & Society: Private Law eJournals

Abstract

Because a patentable invention must be novel and it must embody an advancement that would not have been obvious to persons of ordinary skill the invention must be compared to the "prior art" Prior art in the language of the current Patent Act includes anything that was already "patented described in a printed publication or in public use on sale or otherwise available to the public" With certain qualifications patent law has always required that prior art have been available to the public A manuscript describing the claimed invention that had never left its author's desk drawer would not qualify as a printed publication But what of prior art that was accessible but ignored or that was available at one time but snatched away or forgotten Can "lost art" be used to challenge the novelty of a claimed invention It is an important question because of the light it sheds on what it means for prior art to be "available to the public" a matter that has been the subject of much attention since the recent adoption of the America Invents Act It also forces us to consider the character of the public domain as applied in the context of patent law specifically whether every addition to the prior art is also a contribution to the public domain and in consequence irrevocable I conclude that courts should be guided by the policy of preserving in the public domain advancements that have already made an enduring contribution to public welfare Lost art that demonstrably failed to provide any lasting benefit to the public should not count against a later inventor who in a practical sense has advanced what the Constitution calls "the Progress of the useful Arts"

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