Author ORCID Identifier
Section 102, Geographical limitation on prior art, Biopiracy, Public domain, Novelty, Indigenous holders of knowledge, Intellectual Property Clause, Patent, Foreign use of invention
Part I of this Article provides an overview of § 102 of the Patent Act, the role of prior art in the patentability analysis, and the origin of the limitation on relevant non-patent, nonpublished art to that existing "in this country." Part II then analyzes the constitutional deficiency of the limitation in light of the express and implied purposes of the Intellectual Property Clause as informed by judicial decisions, technological changes, global contraction, and expanded notions of inventive research sources. Policy concerns are the focus of Part III, which discusses how § 102's geographical limitation facilitates forms of "biopiracy," conflicts with the policies underlying § 102(b), and is at odds with global patent harmonization efforts. Part III also explores the likely impact of elimination of the § 102 geographical limitation on U.S. patents. This Article ultimately concludes that eliminating the geographical limitation on prior art is a necessary step for the United States to take in this small, small world.
Minnesota Law Review
Margo A. Bagley, Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 MINN. L. REV. 679 (2003).