Keeping Time Machinese and Teleporters in the Public Doman: Fiction as Prior Art for Patent Examination

Daniel H. Brean


Works of fiction sometimes contain disclosures of inventions that operate as a bar to patentability, preventing inventors who actually make those inventions from subsequently patenting them. This is because the fictional disclosures effectively destroy the novelty of the inventions or render them obvious. Despite such disclosures, the U.S. Patent and Trademark Office does not habitually or effectively search through fiction for pertinent prior art in its examinations. This paper explores the legal, economic, and pragmatic considerations if searching fiction is to become part of the patent examination process. Until recently, it was impracticable to search fiction in a manner that would accurately locate pertinent prior art. However, with the advent of the Google Book Search Project, fiction can be both effectively and efficiently searched for the first time in history. Ultimately, the strong public interest in keeping invalid patents from issuing requires that fictional prior art searching be incorporated into patent examinations.

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