WHAT IS THE PUBLIC DOMAIN?
We Are Free to Use What Is In the Public Domain – It Belongs to Everyone
We’ve all heard of the term “public domain.” But what does it mean and how does it relate to intellectual property? The public domain can be thought of as everything that belongs to the public, rather than to any one person — things the public is free to use without encumbrance, having to pay a fee, or facing risk of a lawsuit. Knowledge gained by academic researchers or long-known to everyone is part of the public domain. We can all use that knowledge without paying anyone a fee. That is public domain. Likewise, the subject matter of an expired patent, or something that was never patented, is also part of the public domain*.
There are other things that are in the public domain that ‘belong’ to the public, such as free use of the language to communicate. Imagine if someone tried to trademark the word ‘joint’ for their marijuana cigarette product saying, “Now this word belongs to me and to my product and, if you use it, I will sue you.” No rational system would permit that, because it would take ‘joint’ out of the everyday vocabulary; that word is part of the public domain.
IP Should Never Take Something OUT of the Public Domain
What about a marijuana plant cultivar that has been
known and used for a long time? Can someone who is newly commercializing it (or something with its properties) successfully patent it or write patent claims that include such a cultivar within the scope of the claims? We are well-aware that people are trying to do just that. Our visceral reaction tells us this is wrong; and it is also rejected by public policy everywhere that patents exist. It should never be possible for a new patent to take something out of the public domain and to restrict its accessibility.
Sometimes people ask what qualifies for a patent, a trademark, or a copyright. The answer is usually somewhat instinctive: it must be something they created; it can’t be something that has already been around for a long time without that person’s contribution. This kind of instinctual analysis inherently reflects a notion that whatever has recently been created and has value is not part of the public domain and could at least, theoretically, belong to one owner. It is a very important part of intellectual property theory that, once something is in the public domain, intellectual property rights should never be allowed to take it back out.
Protecting the Public Domain from Encroachment by Overbroad Patents
This is the reasoning behind banning trademarks on any generic term; it is also the reason for only permitting patents on things that are new. So when a patent examiner is given a new application to review and determine whether the things that are being claimed are really patentable, he or she looks at the “prior art” — which is really just published information about what is already in the public domain. Part of the process of patent examination is to identify whatever in the public domain is closest to what is being claimed as an invention and, if it is too close, the patent examiner rejects the claims. So, in this way of looking at things, the patent examiner is protecting the public domain from encroachment by a patent applicant.
If something has been known, done, sold, or discussed so long and/or so widely that no one can legitimately claim it is still their own unique secret, that’s public domain — even if that thing (whether public, cultural, academic, or commercial) was never published. Of course, in some industries, the actual public domain and that part of it which is published are not very much alike.
The Problem of Public Domain in the Absence of a Detailed Published History
A great example of this is the marijuana industry, in which the lack of publication was associated with the illegality of the activities. Now that the activities are no longer illegal in many jurisdictions and people are applying for patents, the industry is facing this unique challenge. Patent examiners performing their normal search of relevant publications in the prior art have almost nothing to work with. The lack of relevant prior art can result in examiners allowing patent claims that cover public-domain subject matter, because there’s no prior art basis for rejecting claims that are that broad.
On the other hand, people who have been working in the industry for a long time are very well aware of things that were openly known in the industry but that were never published. Therefore, particularly in the situation of marijuana patenting, there is a large disconnect between what is in the ‘real’ public domain and what is in the prior art.
Coming back to the more general concept, the message regarding the public domain is that people really can at least start by trusting their instincts about whether something should be protected by a trademark, a patent, or a copyright. Is it really new, or does it already belong to the public? That’s the question. The answer gives us a good starting point for discussing whether something should be protectable in an intellectual property system.
* For purposes of brevity, I am using the term ‘public domain’ very broadly; there are exceptions and nuances I won’t go into here, since this is a blog and not a treatise.
By Dale Hunt – The opinions expressed here are the author’s own and do not necessarily reflect those of his professional colleagues or his clients. Nothing in this post should be construed as legal advice. Meaningful legal advice can only be provided by taking into consideration specific facts in view of the relevant law.
I agree with you