Patent Anticipation and Obviousness as Possession

The concept of possession in property law operates to allocate property rights among competing claimants by awarding the property to the first to take possession. Possession in this context requires an act that communicates to third parties that someone has exercised dominion over the item. Patent law operates in similar ways. The doctrines of novelty and non-obviousness ask, in essence, whether the public was already in possession of the invention prior to the inventor.

If so, then the patent application should be rejected. This possession-based view of novelty and non-obviousness offers important insights and prescriptions. As to novelty, the possession framework suggests that the current requirement that the prior art disclose the invention as arranged in the claim is unwarranted. It also suggests that the current doctrine of inherency is wrong.

With respect to obviousness, the possession-based approach may be emerging through the Supreme Court¿s reinvigoration of the ¿obvious to try¿ standard. The possession-based framework also highlights the inconsistent treatment of obviousness as possession in other contexts.