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14 Fed. Cir. B.J. 163 (2004-2005)
Laying the Ghost of the "Invention" Requirement, 1972

handle is hein.journals/fedcb14 and id is 177 raw text is: Laying the Ghost of the Invention Requirementt By Honorable 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 Section 103 which brings about statutory compliance with the Constitutional limitation on the power of Congress to create a patent system, assuming novelty of the invention, of course, which is also necessary. (35 USC 101 and 102.) Second, it is the provision which assures tat 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 monopolies and unreasonable restraints of trade. Both compliance with the Constitution and avoidance of conflict with antimonopoly principles involve the same considerations: promoting 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, Section 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 obvi- ous 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 corollary, 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 patent sys- tem 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 pat- ent system. The 1952 Patent Act did several things to draw the line between patent rights and established anti-monopoly principles. The enactment of t Reprinted with permission from the APLA Quarterly Journal, Vol. 1, No. 1, 1972, pp. 26-45. 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 Philadelphia Patent Law Associations and Patent Section N.J. State Bar, October 12, 1972. Judge, U.S. Court of Customs and Patent Appeals, Washington, D.C.

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