On the Temporal Reach of Patent Scope: A Multidimensional Model of Invention-Space

Later inventors often improve upon products disclosed by earlier patentees, creating new products that were not fully possessed or enabled by those earlier patentees. Improvement raises the question of the temporal reach of the earlier inventor‘s patent, i.e., the reach that an earlier patent should have into future improvements that are not yet invented at the time the patent is filed. Temporal reach raises two questions. The first is the ―when‖ question: Under what conditions should courts construe a patentee‘s rights to encompass an improvement? The second question is the ―how‖ question: By what doctrinal mechanism should that reach be created? The ―when‖ and ―how‖ questions are usually addressed in distinct literatures, the former employing economic reasoning largely divorced from the reality of contemporary patent doctrine and the latter couched in doctrinal reasoning largely divorced from the economics of improvement. This Article makes an argument that bridges the gap.