Unlike other areas of the law where doing something in public can land you in a lawsuit (or at least a courtroom with a nice, slightly used orange jumpsuit), sometimes in patent law doing things in public can get you out of a lawsuit.
When a company finds itself in court defending against a patent lawsuit, it will usually assert two major defenses. First, the company will say "I don't practice (or produce) what is claimed in this patent." Second, a defendant in a patent lawsuit will also attempt to "invalidate" the claims of the patent by showing that "prior art" described the claims in the patent prior to the application date of the patent. While this defense can take multiple forms (see, for example, 35 U.S.C. ? 102
), a defendant must often show that the prior art relied upon was in fact publicly known or publicly used. So now its time for a pop quiz--which one of three options would you consider not being "publicly accessible" for the purposes of United States patent law:
A: The use of a centrifuge in a secure laboratory at the National Institute for Health;
B: The posting of a paper on an unsecured FTP server; or
C: Indexing a dissertation in a paper file and placing it on a shelf...in Germany.
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