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To what extent can statements made by an applicant, intrinsic to a patent specification, be accepted as facts? Is this question context-dependent, or is there a hard-line rule that applies across the board? Should it matter what patent law issue is involved: patentable subject matter; obviousness; claim construction? Perhaps most importantly, why does this question matter? What is at stake? This piece argues that there should be a judicial apprehension towards recognizing the blanket proposition that applicant statements within a patent specification can be accepted as matter of fact supporting a determination regarding common general knowledge. Specifically, there should be a judicial apprehension towards endorsing the acceptance of statements made within a patent specification as factual determinations regarding the state of the art or common general knowledge of a hypothetical skilled artisan, when such assertions lack reference to any factual source that is extrinsic to the patent document. Broadly, this piece argues that the law/fact distinction should be drawn along the corresponding intrinsic/extrinsic distinction.
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This article provides guidance concerning alternative dispute resolution (ADR) options for ownership disputes of inventions conceived within universities. Focusing on an interest-based approach to mediation, this article begins by summarizing the key principles of interest-based mediation. The objective of the interest-based approach to dispute resolution is to explore options for a negotiated resolution that satisfies the interests of all parties. For a negotiated resolution to be the best option for all parties to the dispute, it must present a resolution more favourable than each party’s best alternative to a negotiated resolution (“BATNA”). A BATNA revolves around the outcomes a legal resolution (i.e., litigation) might provide compared to possible negotiated resolutions. Accordingly, a substantial portion of this article focuses on summarizing some of the legal issues at play in most invention ownership disputes. The article then turns to the university context. One of the central objectives of this article is to highlight how the contemporary university is a unique segment of today’s society, in that it is an eclectic mix of economic, social and legal values. The contemporary university rests on neither end of the economic spectrum. It is neither a marketplace driven solely by free market relationships, nor is it a social institution motivated by public interest only. Approaching university policymaking, and specifically, invention ownership policy, entirely from either end of this spectrum is bound to result in disputes. Accordingly, the paper argues that those interested in seeking creative avenues for mitigating against and resolving ownership disputes of inventions must remain sensitive to this reality. Keywords: patent, mediation