Keeping Time Machines and Teleporters in the Public Domain: Fiction as Prior Art for Patent Examination

University of Pittsburgh School of Law Journal of Technology Law and Policy, Vol. 7, Art. 8 (2007)

37 Pages Posted: 28 Jun 2013

Date Written: 2007

Abstract

Works of fiction sometimes contain disclosures of inventions that operate as a bar to patentability, preventing inventors who actually make those inventions from subsequently patenting them. This is because the fictional disclosures effectively destroy the novelty of the inventions or render them obvious. Despite such disclosures, the U.S. Patent and Trademark Office does not habitually or effectively search through fiction for pertinent prior art in its examinations. This paper explores the legal, economic, and pragmatic considerations if searching fiction is to become part of the patent examination process. Until recently, it was impracticable to search fiction in a manner that would accurately locate pertinent prior art. However, with the advent of the Google Book Search Project, fiction can be both effectively and efficiently searched for the first time in history. Ultimately, the strong public interest in keeping invalid patents from issuing requires that fictional prior art searching be incorporated into patent examinations.

Keywords: patent, patents, patentability, prior art, fiction, examination, anticipation, obviousness, enablement, Google book search

JEL Classification: K39, K40

Suggested Citation

Brean, Daniel Harris, Keeping Time Machines and Teleporters in the Public Domain: Fiction as Prior Art for Patent Examination (2007). University of Pittsburgh School of Law Journal of Technology Law and Policy, Vol. 7, Art. 8 (2007), Available at SSRN: https://ssrn.com/abstract=2285478

Daniel Harris Brean (Contact Author)

affiliation not provided to SSRN

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