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Document Type

Article

Publication Date

Spring 2017

Publication Citation

92 Indiana Law Journal 557 (2017)

Abstract

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is one in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and nonpublic information through the lens of social science —namely, principles of trust.

Patent law’s public use bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current application of the public use bar privileges the confidentiality and control norms of industry while minimizing those no less strong norms common to lone entrepreneurs. This results in a general pattern: corporate inventors tend to win their public use cases; solo entrepreneurs tend to lose them. As a result, the public use bar has unintended negative effects, including discouraging experimentation and discriminating against inventors without the financial backing of corporate employers. These results are the direct effects of how courts determine the difference between public and nonpublic uses.

This project proposes a new way of talking about, thinking through, and deter-mining when previous disclosures bar subsequent patentability. In short, I argue that invention disclosures in contexts of trust retain their legal protection despite any ostensible loss of control or lack of formal confidentiality agreements. This proposal respects social network differences and will advance the goals of patent law and increase access to the innovation economy for all persons.