The Estrangement of the Public in Patent Law
30 Pages Posted: 29 Jan 2016
Date Written: January 29, 2016
More than any other field of law that creates private rights, patent law incomparably relies on the public. The public in patent law performs the function of defining, determining and disputing the inventive contribution and can be defined as that part of the patent system that works towards restricting and circumscribing the monopoly granted by the patent. In its early years, patent law was tuned more towards public participation as the determinant of an invention by requiring tangible, working models that allowed for the immediate ascertainment of the value of the invention by the public. As the law developed, the role of the public was sidelined by a series of path-breaking changes. The foremost of which involved a change from the material representation of the invention by way of working models to a textual representation by way of the patent specification. The estrangement of the public is noted in three significant changes made in the patent process, all centered on the change how the invention is represented: the emergence of patent prosecution as a secretive process; the shift in the burden of proving the invention from the inventor to proving the lack of invention by the patent office; and the dispensation of the requirement that the invention had to be worked physically, leading to a purely textual description of the work. This series of estrangements led to the fictionalization of the role of the public. The patent office run by the state came to be seen as an impartial representative of the public. The invention came to be proved by the inventor in writing rather than through working models, placing the burden on the patent office to prove the lack of functionality. The disclosure requirement itself came to be seen as a replacement for the actual working of the invention. Through these fictions, necessitated by the growth of technology and the increase in the number of patents filed, the law diminished the role played by the public ensuring the eventual denigration of patent law.
Keywords: estrangement of the public, patent, examination system, textualization, working of the invention, burden of proof
JEL Classification: O31, O34
Suggested Citation: Suggested Citation