ABSTRACT
Since its inception, the Patent Act has followed a two-part structure, with the first part serving as a threshold gateway. Loosely akin to a standing requirement, the threshold asks whether the patent applicant’s claim falls anywhere within the type of subject matter protected by patents. For 233 years, the word ‘new’ and the corresponding concept of newness have graced every Patent Act, without exception, as part of the threshold inquiry. Today, however, a major legislative effort is underway that would remove the word ‘new’ from the Patent Act’s opening language, replacing newness with later, technical considerations. As modern thinkers clamor to support a new chapter in patent history, this article examines historic, theoretic, and practical doctrinal perspectives, and argues that newness cannot be jettisoned from the threshold frame.
Every great edifice bears an inscription. Arguably, it is the inscription that makes the edifice great. Would Harvard’s law library loom as large in legal culture if its walls did not call laws the ‘wise restraints that make men free’? What would the US Post Office be without the precept, ‘Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds’? So too the Patent Act-like any other monumental enactment-bears an inscription on what is effectively its gateway provision. By lapidary words, the structure informs the world of its guiding spirit, its sacred principle. Altering those words would be an act of physical and intellectual vandalism.
Feldman, Robin, Is Newness Necessary for Patenting? (January 30, 2026).
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