Equal Parts Science, Technology, and Intellectual Property Law


Equal Parts Science, Technology, and Intellectual Property Law

The relationship between science, technology, and intellectual property is symbiotic. Whether it is copyright law protecting software, trademark law protecting a brand and goodwill associated with a blockbuster drug or popular technology gadget, or plant breeders’ rights protecting a new plant variety — science, technology, and intellectual property law co-exist and mutually benefit one another. However, such symbioses cannot be more obvious than the symbiosis between science, technology, and patent law.

Without science and technology, patents and patent law simply could not exist. Patents bestow exclusive rights over scientific or technological inventions to their holders. Patents also help in the development of science and technology. At the core of the patent system is a bargain designed to incentivize public disclosure of inventions so that further scientific or technological advancements can be made while being respectful of the potentially significant resources that went into developing that invention. Also, the availability of patents has helped many start-up technology companies secure funding to pursue development of new technologies. In exchange for filing a patent application, which inherently publicly discloses a described technology, a granted patent furnishes a time-limited monopoly over the technology.

Moreover, the process of evaluating applications for patents requires the perspective of a hypothetical “person of skill in the art” (e.g., a scientist, engineer, or other technical person).

For a technology to be patentable, the technology must be both novel and inventive. A technology is novel if there has not been a public disclosure describing the technology anywhere in the world prior to the relevant date. In limited circumstances, disclosures of the technology originating from the inventors of the technology may be excluded from consideration. A technology is inventive if it would not have been obvious to arrive at the technology given the state of the art at the relevant date.

Whether a technology is novel and inventive is assessed from the perspective of a person of skill in the art to which the technology relates. For example, if the technology relates to an electrical circuit for managing touch screen performance in a portable electronic device, then the person of skill in the art may be a hypothetical electrical engineer with experience designing circuits for portable electronic devices. Likewise, if the technology relates to a compound for treating a human disease, then the person of skill in the art may be a hypothetical biochemist with experience developing compounds for treating human diseases.

A patent application must sufficiently describe the technology that the inventors seek to protect. Again, whether a technology is sufficiently described is assessed from the perspective of a person of skill in the art. While a patent application is being drafted, the inventors are generally involved and work together with their patent counsel. The majority of the text of a patent application is technical writing (written with legal consideration in mind). The description and associated drawings typically include chemical formulas, technical drawings, circuit diagrams, mathematical relationships, etc. In some cases, biological matter itself such as bacteria, fungi (including yeast), plant seeds, cells in culture, nucleotide sequences, plasmids, vectors, viruses, phages, replication-defective cells, etc. may form part of a patent application.

Ultimately, even though science and technology and intellectual property law are developed and exist in different environments, intellectual property law supports science and technology and vice versa. In such role, intellectual property law may be a supporting cast member to a new scientific or technological advancement. In some instances, new scientific or technological advancements and intellectual property law are co-stars.