Atypical Inventions

By Seymore, Sean B. | Notre Dame Law Review, September 2011 | Go to article overview

Atypical Inventions


Seymore, Sean B., Notre Dame Law Review


Patent law is constantly evolving to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved over time leading to a growing disconnect between the patent system and certain technical communities. Particularly vulnerable to the ill effects of this disconnect are "atypical" inventions, which this Article defines as those in which either (1) a technical aspect of the invention or the inventive process does not conform to an established legal standard in patent law or (2) the technical underpinnings of the invention depart from well-established scientific paradigms. An example of the former is an invention which occurs by accident; an example of the latter is an invention which seems incredible in light of contemporary knowledge in the relevant field. Since these inventions often spark a paradigm shift in scientific and technological understanding, they have a high likelihood of stimulating significant creative activity and ultimately promoting the patent system's overarching goal to promote scientific and technological progress. Thus, this Article argues that the patent system should evolve to better accommodate these inventions.

INTRODUCTION

  I. ACCIDENTAL INVENTIONS
      A. The Inadequacies of the Current Invention Standard
        1. The Pathway to Invention
        2. Unpredictability
      B. Pinpointing Invention
        1. Navigating the Current Framework
        2. Problems
          a. Conception
          b. Reduction to Practice
          c. Priority Issues
      C. An Alternative Approach
        1. Rethinking Invention Completeness
        2. Policy Considerations
          a. Tradeoffs
          b. On Disclosure and Follow-on Innovation

  II. INCREDIBLE INVENTIONS
        A. Assessing Credibility
          1. Red Flags in the Patent Office
          2. Examining Incredible Inventions
        B. Limits of the Current Paradigm
          1. Proof Problems
          2. The Credibility Lag in Science
          3. Subjective Bias
        C. Refocusing the Inquiry
          1. Normative Thoughts
          2. Alternative Screening Tools

CONCLUSION

[C]reativity, in the form of ideas, innovations, and inventions, has replaced gold, colonies, and raw materials as the new wealth of nations. (1)

INTRODUCTION

Patent law is one of the most dynamic areas of the law because it must respond as the nature of the invention landscape changes to reflect advances in science and technology.2 That being said, patent law functions as a one-size-fits-all system in that all inventions--irrespective of technological field--must satisfy the same statutory patentability criteria. (3) Thus, patent law evolves incrementally through individual judicial decisions where courts apply the technologically neutral provisions of the patent statute differently to different technologies. (4) This framework in theory allows the patent system "to adapt flexibly to both old and new technologies, encompassing 'anything under the sun that is made by man.'" (5)

Yet there is a disconnect between the patent system and science and technology. Part of the problem stems from the inability of law to evolve fast enough to keep pace with technological advances:

   [The legal system] must run to catch up, and the moment it catches
   up, it falls behind again. The simple truth is that law evolves
   through a slow, incremental, and deliberative process .... In
   contrast, technology evolves as quickly as the human mind allows.
   The result is an increasingly wider "guidance gap"--the space
   between the new technology and the old law. (6)

This problem has become even more acute in recent years as technology evolves at an ever-increasing pace. (7)

But even if a gap is inevitable, three obstacles in the development of patent jurisprudence have exacerbated it. First, it took the courts a long time to realize that patent doctrines which emerged during the Industrial Age were incompatible with chemical and pharmaceutical inventions. …

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