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87 Minn. L. Rev. 679 (2002-2003)
Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World

handle is hein.journals/mnlr87 and id is 693 raw text is: Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World' Margo A. Bagleyt INTRODUCTION Our world is getting smaller each day. As a consequence, a statutory provision that may have been constitutional when originally enacted a very long time ago is now patently unconstitutional. That provision is 35 U.S.C. § 102, which excludes evidence of foreign public knowledge or use of an invention from being considered in U.S. patentability decisions.2 t Associate Professor of Law, Emory University School of Law. The ideas presented in this Article benefited greatly from presentations made at the CASRIP Patent and Intellectual Property Law Summer Institute at the University of Washington, at the Traditional Knowledge, Intellectual Property, and Indigenous Culture symposium at Cardozo University, and to the faculty at the Washington & Lee University School of Law and the George Washington University School of Law. The author also would like to thank Anita Bernstein, Bob Brauneis, Dorothy Brown, Bill Buzbee, Martha Duncan, Cynthia Ho, Paul Heald, Tom Irving, Mark Lemley, Marc Miller, Ruth Okediji, Robert Schapiro, and Charles Shanor for their helpful comments and critique. Thanks also to William J. Haines and Erica Beck of the Emory Law Library and to Jeremy Flax, Mathew Kannady, Terriea Lipscomb, and Marni Weiss for their invaluable research assistance. 1. The title alludes to the song It's a Small World. It's a Small World, DISNEY'S THEME PARK SING-ALONG, available at http://disney.go.coml disneyrecords/sing-alongs/themeparks/media/smallworld.wav. The song's conclusion that there's so much that we share that it's time we're aware it's a small world after all is quite apropos of the issue of geographical limitations on prior art in U.S. patent law. 2. 35 U.S.C. § 102 (2000). The problematic portion of 35 U.S.C. § 102, its geographical limitation on prior art, first appeared in U.S. law in the Patent Act of 1836, ch. 357, 5 Stat. 117. The limitation in § 102(b) is illustrative: A person shall be entitled to a patent unless ... the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States .... 679

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