Publication Title

Washington University Law Review


Patent law defines novelty by the creation of a new embodiment, not an idea. For example, the Wright brothers are deemed to have invented the airplane because nobody made an airplane before, not because they were the first to think of flying. Patent law then defines monopoly scope through a theory of disclosure of embodiments: despite the airplane being new, the Wright brothers could not patent every airplane, ostensibly because they did not teach how to make every airplane embodiment (such as a jet fighter). Disclosure theory, however, is incoherent. Patent law cannot confine the Wright brothers to the embodiment they actually taught—a barely-flying wooden glider—since doing so would eviscerate incentives. But once we say that patents can cover more, disclosure theory provides no limit. If the Wright brothers could cover some undisclosed airplanes, why not all undisclosed airplanes? I argue in this Article for a different theory. In order to be fairly credited as the inventor of something, the patentee must be the first to articulate the idea of that thing. The Wright brothers could not patent all airplanes under this theory, not because they did not disclose how to build every airplane, but because the idea of airplanes was old. By keying patent scope to the novelty of the idea rather than the disclosure of embodiments, my rule provides a fairer and more accurate measure of the patentee’s contribution.