A New Day Yesterday: Benefit as the Foundation and Limit of Exclusive Rights in Patent Law, 6 J. Marshall Rev. Intell. Prop. L. 373 (2007)

The exclusive right afforded by patent protection to an inventor is in exchange for contribution to the public domain of an enabling disclosure of the subject matter claimed. The requirement of novelty and the prohibition against infringement are both based on statute, and linked in well-established judicial precedent as “that which infringes, if later, anticipates, if earlier.” See, e.g., Pairpearl Products, Inc. v. Joseph H. Meyer Bros., 58 F.2d 802 (D.C.D.M.S.D. 1932). Grant of a limited period of exclusivity to an inventor and interpretation of the scope of the right given in exchange for complete disclosure have engendered the judicial doctrines commonly known as inherent anticipation and experimental use. Analysis of three recent cases illustrate how historical conceptions of inherency and experimental use doctrines can greatly simplify determinations of the scope of exclusive rights under widely varying circumstances so long as those rights are not confused with the inexorable capacity of thought and a corollary right of exploration reserved to the public.