About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 APLA Q. J. 26 (1972-1973)
Laying the Ghost of the Invention Requirement

handle is hein.journals/aiplaqj1 and id is 28 raw text is: LAYING THE GHOST OF THE INVENTION REQUIREMENT* BY JUDGE GILES S. RICH The Subject I am going to discuss §103 of Title 35 United States Code, the 1952 Patent Act, the unobviousness provision, because it is the heart of the patent system and the justification of patent grants. Why do I say that? For two reasons: First, it is § 103 which brings about statu- tory compliance with the Constitutional limitation on the power of Congress to create a patent system, assuming novelty of the inven- tion, of course, which is also necessary. (35 USC 101 and 102.) Second, it is the provision which assures that the patent grant of exclusive right is not in conflict with the anti-monopoly policy brought to this country from England by the colonists, long before our antitrust statutes, and that patent rights do not conflict with the policy of those statutes, which is to prevent odious monop- olies and unreasonable restraints of trade. Both compliance with the Constitution and avoidance of conflict with antimonopoly principles involve the same considerations: pro- moting progress in the technological arts while not interfering with the free use of technology which is fairly in the public domain. As I hope to make clear, § 103 assures this result by allowing exclusive rights to inventors only when their inventions would not have been obvious to the ordinary workers in the field, preserving inviolate the common fund of technical knowledge which is obvious to the workers in the art. A time-limited exclusive right to subject matter which was neither known, nor obvious from what was known, takes nothing from the public which it had before. As a necessary corol- lary, the disclosure in a valid patent gives to the public knowledge it did not possess, actually or potentially, and thereby makes for progress. It is worth remembering, furthermore, that we had a statutory pat- ent system in this country for a century before we had a statute against monopoly. Antitrust law, therefore, should be so construed as to maintain a viable patent system. The 1952 Patent Act did sev- *Substance delivered as a speech to: Los Angeles Patent Law Association Sept. 18, 1972; San Francisco Patent Law Association Sept. 20, 1972; New Jersey and Philadel- phia Patent Law Associations and Patent Section N.J. State Bar, October 12, 1972.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most