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Patents: Hiding from History


Stephen M. McJohn


Suffolk University Law School


Santa Clara Computer and High Technology Law Journal, Forthcoming
Suffolk University Law School Research Paper No. 07-27

Abstract:     
This essay considers how patent law doctrine clouds the historical record of technological development. The essay first surveys a recent book that relied heavily on patent records to reexamine acutely the role of intellectual property in economic development, "The Democratization of Invention," by B. Zorina Khan. The essay's second part discusses how patent law today likely distorts patents as primary historical sources. The law encourages an inventor not to accurately disclose her invention and its place in technological development, but rather to submit vague and overbroad invention descriptions and claims. In describing the invention, some case results perversely favor what one commentator has called "intentional obscurity." Other aspects of law governing disclosure encourage inventors not to define their terms; or identify the category of invention in the preamble; or limit the claims to the actual invention. Likewise, inventors can be at a disadvantage if they explain the advantages of the claimed invention or submit software code used to implement the invention. Even keeping up on technology in the field may hurt the patent applicant. Reform of such rules could help the patent system today, and, as a byproduct, tomorrow's history.

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Date posted: March 13, 2007 ; Last revised: May 14, 2014

Suggested Citation

McJohn, Stephen M., Patents: Hiding from History. Santa Clara Computer and High Technology Law Journal, Forthcoming; Suffolk University Law School Research Paper No. 07-27. Available at SSRN: http://ssrn.com/abstract=969447

Contact Information

Stephen M. McJohn (Contact Author)
Suffolk University Law School ( email )
120 Tremont Street
Boston, MA 02108-4977
United States
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