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Foundations of Patent Law

Below in no particular order are some of the foundational rules of patent law.  No attempt is made to prove these rules, but most should be familiar to patent attorneys.  If you disagree or are looking for an explanation feel free to comment below and I will respond.  In many cases I have already written a post related to the foundational rules.  For my analysis of the Foundation of 35 USC 103 see 5th Anniversary of KSR: Is Section 103 is Unconstitutional?


*Patents are a Constitutional Right

*Patents and Copyrights are the only right mention in the Constitution

*Patents are a Natural Right

*Patents are a Property Right – the basis of all property rights is creation/production and the same is true of patents.

*Trade Secrets are a Natural Right

*Patents can be viewed as a Social Contract where the inventor gives up their right to a trade secret in order to obtain a patent.

*All Inventions are a combination of known/existing elements/steps and known connections

*Patents are not monopolies  (A property right cannot be a monopoly)

*All Inventions use natural phenomena – we are not dealing in magic.

*Every element in every claim of a patent behaves in a predictable way – they do not violate the laws of physics – again we are not patenting magic.

*Claims define what the invention is.

*Every element (word) in a claim has to be given meaning – reading a claim is like reading an equation – not like reading prose.

*The definition of an Invention implies that it is Useful or has an Objective Result

*The definition of an inventor requires that they be the first person to create the invention, which results in the novelty requirement.


  1. Thought you would enjoy (in a perverse sense) this video of an author who is telling other people (medical researchers) to work for free:

  2. Stepback, I have written a post on this book I tried to look up her background and all I found was she was a medical ethicist at Harvard. She does not appear to have a medical or science background and no knowledge of patent law. It just goes to show that Harvard hires a lot of idiots.

  3. Dale,

    I must have missed that earlier post of yours.

    It is just amazing to watch someone like this who is so totally clueless as to how inventions and discoveries are arrived at and then transferred to the general public for their clueless consumption.

    It’s as if this lady believes that inventions grow on trees and that the alleged “inventor” is merely no more than a water carrier passing the “inevitable” progress of science along to the lay public. In the lecturer’s eyes it seems that inventors (and discoverers) are unjustly and “greedily” asking for compensation for the negligible, miniscule “inventing” thing they did in their inventor or discoverer role.

    My suspicion is that the astute legal minds on the US Supreme Court believe in something of a similar refrain when they hand down completely clueless decisions like Mayo v. Prometheus (MvP) or In re Bilski.

    One gets the impression from the MvP decision that proper dosaging is just a natural outcome of some harmonious “Laws of Mother Nature” which Mother herself graciously hands down to the biomedical research workers and then the researchers merely act as water boys (or girls) who carry the stone tablets (on which Mother’s “Laws” are inscribed) to the attentive and appreciative audience of doctors for their free use. Sweet.

  4. Actually, i think you are completely right. In the MvP SCOTUS opinion they cite “professor” Lemley’s paper as authoritative and it says explicitly what you are saying about inventors. see and

    Of course Lemley is not a patent attorney and does not have a scientific background, but he is an “intellectual property” expert. Lemley and this lady are recycling socialist rhetoric that was applied to property owners originally and they have applied it to inventors and patents. They always disguise their intentions by also using the language of antitrust – which is why I spend some much time educating people that patents are property rights not monopolies.

  5. Ah yes. It comes back to memory now.

    Basically, Lemley is saying that the King (or society as he calls it) is the true creator of all advancements in science and the useful arts and the individual serfs who “claim” to have created these things with their sweat and efforts are merely inevitable cogs in the machinery which the King has set in motion. Therefore all the works of these inventor serfs and discoverer serfs should automatically escheat back to the Sovereign by operation of Feudal laws.

    Lemley should take a hint from my moniker and call himself, “The Throw-Back”. He wants to revert back to feudal times. Good times they were –for the King.

    But didn’t some folk on the other side of some pond stage a revolution because they were unhappy in serfing for the King?
    Perhaps I recall it wrongly.
    The Ministry of Truth, you know, is always re-writing these things. ;-)

  6. Stepback, excellent prose – perhaps we should just become writers. Did you ever notice that real genius is in rearranging words or paint, but anything that involves the practical application of science takes no skill or intelligence. Ignoring the plain words of the Constitution requires genius, but coming up with a superhetordyne (etc.) takes no talent. After all these people did not avoid calculus and engineering physics because it was difficult – it was below their skill level.

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