This article considers the inherent problems in granting provisional patent rights and the resulting tension between patent applicants and the public domain. Patent law is designed to encourage innovation and incentivize creation. To this end, there must be a balance struck between the private rights granted to a creator and the rights removed from the public. Patents, once issued, allow individuals to seize a limited monopoly over their intellectual property as a constitutional right. These exclusive rights provide incentive to disclose new works to society and thus justify weakening the public’s rights. 35 U.S.C. § 154(d) grants to a patent applicant “provisional rights” between an application’s date of publication and issuance of the patent. Provisional rights therefore broaden the creator’s monopoly at the expense of the public, but at a much different cost than traditional patent rights, This article analyzes the provisional rights granted under 35 U.S.C. § 154(d) and explores their costs, and in conclusion determines that the courts must provide clarity on the scope of these rights and Congress should carefully consider the resulting costs imposed on society.
Tremer, Brian L., "Houston, We've Got a [Provisional] Problem: An Analysis of 35 U.S.C. § 154(d)" (2012). Law School Student Scholarship. Paper 109.