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.

June 1, 2023
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Preserving the Patent Bargain: U.S. Supreme Court Limits Amgen’s Monopoly

No. 21-757 (Supreme Court May 18, 2023) The Supreme Court of the United States applied bargain theory in its long-awaited decision regarding the enablement requirement of the Patent Act.
September 30, 2022
A photograph of a female engineer peering through the wires of a computer.

Can AI Be an Inventor? We’re Asking the Wrong Question

If we reframe the question of “Should AI be named an inventor?” in the context of incentivizing innovation, we get a much more elegant question.
April 7, 2022
Photograph of a hand holding a smartphone. The smartphone displays the Youtube logo.

Is it Time for Video Provisional Patent Applications?

In a world of Instagram, Youtube and TikTok, why can't inventors submit their provisional patent applications entirely in video format?
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

2021 FCA 154: 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.
December 20, 2016

Bargain Theory Requires Adequate Disclosure in Patents

2015 FC 108 - Patent drafters are required to provide adequate disclosure of an invention in patent applications to reduce the likelihood that the granted patent will be litigated and invalidated years down the road. This Federal Court (“FC”) decision dismissed an application for a prohibition order on the grounds of non-infringement and found the patent to be obvious and lacking in utility.