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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. Inventors must disclose their invention in the patent document to memorialize what their creation is. This disclosure communicates to third parties the innovation over which the patent owner is asserting dominion. Patent law has similar first-in-time dynamics, awarding the patent among competing applicants to the first-to-invent under the 1952 Patent Act and the first-to-file under the America Invents Act. But patent law has another “racer,” the public via the prior art. 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 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. Prescriptively, bringing obviousness in-line with the patent law doctrine primarily responsible for demonstrating possession – enablement – offers an opportunity to map patent law more closely with the lived experience of technologists, thus offering a potential bridge that renders obviousness more accessible its intended audience – scientists, engineers, and other innovators.