In Vento Scribere: The Intersection of Cyberspace and Patent Law

Max Stul Oppenheimer

University of Baltimore - School of Law


Florida Law Review, Vol. 51, 1999, pp. 229-270

This article and the following paragraphs in this abstract reflect one of the dilemmas that faced the world in 1999 regarding the emergence of the Internet, and how it was affecting the rules by which patents were granted by the U.S. Patent and Trademark Office.

By design, the law is reactive. Development of the law is driven by developments in technology, particularly by those which are publicly perceived as breakthrough developments. For example, the announcement of the successful cloning of a sheep from a mature somatic cell prompted calls for new legislation and reexamination of existing laws governing everything from the funding of biomedical research to the definition of human life. The realization that the Internet is transforming communications has likewise prompted new legislation and reexamination of existing laws governing everything from fundamental concepts of presence and jurisdiction to personal privacy.

Considerable recent attention has been devoted to United States patent law, in part because of interest in global harmonization of intellectual property laws, and in part because of the growth of the intellectual economy and the concomitant increase in interest in the methods of protecting intellectual property. It has gone unnoticed, however, that a fundamental principle of United States patent law-the refusal to grant patents on inventions which have entered the public domain-needs reexamination in light of the Internet's rapid development. The Manual of Patent Examining Procedure (MPEP), the United States Patent Office's guidance document for the examination of patent applications, is silent on the use of Internet materials as "printed publications" (a major category of documents which help define the public domain) in deciding patentability. There appears to be no published analysis of whether the Internet is a medium of "printed publications" either in the general literature or in the United States Patent Office's policy documents. A moment's consideration of the amount of information on the Internet, compared to the amount of information in books and magazines, and a second moment's conjecture as to the relative amounts of information in these media in the future, should make clear the importance of such an analysis. In 1980, a researcher looking for public information would have relied principally on books and magazines in a library; in 2002, the researcher will rely principally on electronic sources, including Internet Web pages, news group archives, on-line databases, and whatever new resources the next three years bring.

The development of the Internet requires a reexamination of the old questions in a new context: is information which has been posted to a Web page or other public forum on the Internet a "printed publication" under section 102? Including Internet postings as "printed publications" would greatly expand the amount of information which must be analyzed in order to determine patentability of inventions. Excluding Internet postings would, in the near future, likely exclude a significant portion of cutting edge technological information from the public domain. This Article will demonstrate that, under the current state of the case law and given the current structure of the Internet, information posted to the Internet cannot be considered a "printed publication." It will then propose changes which might be made in the patent statute or in the Internet itself in order for Internet postings to qualify as "printed publications."

Number of Pages in PDF File: 42

Keywords: patents, patent law, cyberspace, Internet, Web, printed publication, technology, communications, intellectual property, public domain, United States Patent and Trademark Office, Manual of Patent Examining Procedure

JEL Classification: K10, K19, K29, K39, K49, L86, O31, O33, O34

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Date posted: July 16, 2013  

Suggested Citation

Oppenheimer, Max Stul, In Vento Scribere: The Intersection of Cyberspace and Patent Law (1999). Florida Law Review, Vol. 51, 1999, pp. 229-270. Available at SSRN: http://ssrn.com/abstract=2294002 or http://dx.doi.org/10.2139/ssrn.2294002

Contact Information

Max Stul Oppenheimer (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
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