34 Pages Posted: 12 Jan 2011 Last revised: 3 Jan 2015
Date Written: January 11, 2011
Patent law is constantly evolving to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved over time; leading to a growing disconnect between the patent system and certain technical communities. Particularly vulnerable to the ill effects of this disconnect are “atypical” inventions, which this Article defines as those in which either: (1) a technical aspect of the invention or the inventive process does not conform to an established legal standard in patent law; or (2) the technical underpinnings of the invention depart from well-established scientific paradigms. An example of the former is an invention which occurs by accident; an example of the latter is an invention which seems incredible in light of contemporary knowledge in the relevant field. Since these inventions often spark a paradigm shift in scientific and technological understanding, they have a high likelihood of stimulating significant creative activity and ultimately promoting the patent system’s overarching goal to promote scientific and technological progress. Thus, this Article argues that the patent system should evolve to better accommodate these inventions.
Keywords: Patent, Invention, Discovery, Conception, Priority, Disclosure, Enablement, Utility, Operability
JEL Classification: O31, O32, O33, O34, O38, O48, K39
Suggested Citation: Suggested Citation
Seymore, Sean B., Atypical Inventions (January 11, 2011). Notre Dame Law Review, Vol. 86, pp. 2057-2090, 2011. Available at SSRN: https://ssrn.com/abstract=1738414