Bargain Theory

At the heart of patent protection lies a bargain. The patent bargain is struck between the inventor and the public.  Like all bargains, it includes three elements: offer, acceptance and consideration. The inventor offers to disclose a novel, unobvious and useful invention to the public. This disclosure is the consideration to be paid. If the consideration fails, the inventor cannot claim the exclusivity conferred by letters patent and the patent is void.

August 9, 2021
Photograph of an auto-injector needle with a drop of liquid at the tip of the needle.

Federal Court of Appeal Reaffirms Overbreadth as Grounds for Invalidity

The FCA held that overbreadth is not an “improper re-emergence of the promise doctrine”. Overbreadth is supported by bargain theory and s. 27 of the Act.
December 2, 2020
Close-up photograph of a fountain pen writing words in ink on paper.

Written Description Particularly Important if Amending Claims in Response to Competitor

Fed. Cir. 2018-1779: A patent for testing fetal DNA was found to be unpatentable because the claims were not fully supported by the written description.