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Patent Law: Introduction

This Guide gives an overview of patent law, with a focus on when state or federal law applies.

Introduction

Patent law is centered on an old debate. It is said to have started with Aristotle and Hippodamus. Hippodamus argued that innovation needed to be rewarded; Aristotle argued that this may harm society because rewarding one for innovation takes from others in order to provide that reward. In patent systems today, this conflict is still evident. Most systems grant the innovator an effective monopoly on the innovation for a limited number of years. The monopoly restricts the rest of society from using the patented innovation, thus allowing the innovator the opportunity to collect the reward by individual exploitation. Finding the appropriate balance between the individual reward and the need society has for the intellectual equity is fundamental to patent law.

Venice, Italy was the first society to have a recognized patent system. The Venice system limited patent monopolies to 10 years. It also reserved for the State a right to override those monopolies granted. Great Britain followed the Venice system in part, but modified it so that it could be a “strategic international trade policy,” which could be used to lure experts with desirable skills and know-how.

Great Britain’s approach to patent law was also followed by the United States. The overall structure of the system initially established in the U.S. is in great part attributed to Thomas Jefferson. The system established by Jefferson has been modified throughout the years to meet different needs. For example, in 1994 the TRIPS agreement was formed, which required member countries to maintain minimum standards of intellectual property law as a WTO membership requirement. For example, as part of the TRIPS requirements, the US extended its patent term to 20 years. Another significant change that occurred recently, in part due to WTO membership, is the passing of the AIA and with it, a rule that brought the U.S. in conformity with the rest of the world—the “first-to-file” system.

Patent Law in Nebraska

Patent law is an area of law that is primarily governed by federal law. However, sometimes matters that are traditionally matters for State law are tied together with matters of federal law, and thanks to the Eerie Doctrine, it is now crystal clear which law applies when this happens. Setting sarcasim aside, attorneys have to admit that it is not clear which law applies when federal issues are closely tied to or “bound up” with matters of State law. Therefore, we look to case law, statute, and secondary sources to figure out this question.

The sources contained herein that deal with Nebraska law help the researcher understand when Nebraska law will apply in the patent arena. There is not a lot of authority on the subject of patent law in Nebraska, so what is contained herein, will be a fair representation of what exists on the subject.

Road Map

The researcher should be aware that patent law is a complex area of the law, as such, many of the sources contained within this article are meant to familiarize the researcher with the area of patent law. Many of the other sources explain when federal or state law applies in the patent arena. And, finally, a few of the other sources help the researcher understand where patent law is applicable to everyday practice, even if the researcher is not a patent attorney or agent.


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