3. Patents

Patent lawyers like to think of patents as the primary driver of technological development. That may be somewhat of an overstatement, but nevertheless patents have historically been an important mechanism for technological advancement over the last two centuries. Many of the most significant technological developments of that period—the telephone, the lightbulb, the airplane, the polymerase chain reaction—involve patents.

A. Patent Law – legal basis

In general terms, a patent is an exclusive right to practice a novel invention for a set period of time. The government grants these rights in exchange for the public disclosure of the details of the invention. There are three types of patents: utility patents, design patents, and plant patents. Utility patents are the most common and are the type of patent that most people think of as “patents.” Design patents are awarded to those who invent new, original, and ornamental designs for articles of manufacture. Plant patents are awarded to those who invent or discover and asexually reproduce any distinct and new variety of plant.

Congress’s authority to create patent laws is based on Article I, Section 8, Clause 8 of the United States Constitution. This clause, commonly referred to as the “Intellectual Property Clause” or the “Patent and Copyright Clause,” states that “[the United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The first major legislation governing patents was enacted in 1790, and most of its core elements have remained relatively unchanged. Over the last 230 years, Congress passed several updated versions of the patent law, with the current legal framework based on the 1952 Patent Act. Another significant amendment, the America Invents Act, was enacted in 2011.

B. Patent Law: core substantive components

Patent law is highly complex, and is made more so by the fact that it often involves highly technical subject matter. However, its fundamental components are relatively simple. In this course we will focus on those fundamentals, relying primarily on inventions that do not require an advanced technical or scientific degree to understand. This is not to say that the following cases are “easy”: they will require a substantial amount of work, particularly the more recent ones. But I have intentionally chosen cases that highly the fundamental elements of patent law or are landmark cases that everyone knowledgeable about patent law will know.

This section begins with a patent. Even though you may know nothing about patent law, you should look at this document and see what you can figure out about it. You do not need to read the patent in any significant depth—instead, just skim through the parts and try to different sections in the document. As you examine the patent, make notes about what you observe.

A few notes about this specific patent. First, it is especially long—the unedited version is 158 pages—and it has a large number of claims at the end (149). Most patents are much shorter and typically have 20 claims at most. Second, this patent went through a special process called “reissue,” in which the original patent was surrendered to the patent office so that the applicant could make changes. Reissue proceedings are limited by statute, and are beyond the scope of an introductory course in intellectual property. For purposes of this course, we will just refer to this document as the Monsanto patent.

After you finish reviewing the patent, read 35 U.S.C. §§ 101, 154(a) & 271(a), along with any relevant statutory definitions. These could be considered the foundational statutes of patent law. Section 101 provides for the grant of a patent to certain people, Section 154(a) states what a patent contains, and Section 271(a) provides the basic cause of action that the owner of a patent may bring.

With this information in mind, next read Bowman v. Monsanto. This case involves a common sight in Iowa during the summer: soybeans.