The rising popularity of tools such as preprint servers, open-access data sources, and generative artificial intelligence has resulted in a proliferation of prior art that has never been seen before under the current patent system. In a rapidly changing world, patent law is slow to catch up, and the current system is not equipped to handle the flood of incoming prior art. In the academic research setting in particular, while the use of preprint servers and open-source data has allowed researchers to participate in widespread information exchange, these tools have also generated a new, large class of prior art dedicated to early-stage research.
This creates a tension with patent law, which assigns a presumption of enablement to nonpatent prior art, including preprint disclosures. Essentially, the law presumes that any public disclosure of an invention contains enough detail to instruct the public to make and use it. Thus, any public disclosure “starts the clock” on an applicant’s time to get to the patent office. This Note explores how that presumption artificially incentivizes premature patent filing, decreasing the overall quality of patents entering the patent system.
Rethinking the Presumption of Enablement in Nonpatent Prior Art,
73 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol73/iss4/3