The "Printed Publication" Bar After Klopfenstein: Has the Federal Circuit Changed the Way Professors Should Talk About Science?

Abstract

Would-be infringers target university patents because faculty inventors are more likely to make inadvertent disclosures than industrial inventors, possibly because of the importance of quick disclosure and publishing in academic science. In Klopfenstein, the Federal Circuit held that the posting of lecture slides after a talk triggered the printed publication bar of the patent statute. First, I argue (contrary to other commentators) that the Federal Circuit is consistent with prior precedent; that the public accessibility and dissemination inquiries should rest on substance rather than form. The focus of the § 102(b) inquiry remains on the inventor, who should lose the right to patent his invention if he makes a public disclosure. Klopfenstein possibly shows that the Federal Circuit will interpret the statute in light of advances in technology. Second, I argue that Klopfenstein is wholly consistent with the policies behind both the printed publication bar and the patent laws generally. Third, I argue that Congress need not amend the patent laws to protect university inventors; rather the solution to the publish-patent tension lies in the university's proper management of technology.