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The concept of possession in property law operates to allocate property rights among competing claimants by awarding the property to the first to take possession. Possession in this context requires an act that communicates to third parties that someone has exercised dominion over the item. Patent law operates in similar ways. Inventors must disclose their invention in the patent document to memorialize what their creation is. This disclosure communicates to third parties the innovation over which the patent owner is asserting dominion. Patent law has similar first-in-time dynamics, awarding the patent among competing applicants to the first-to-invent under the 1952 Patent Act and the first-to-file under the America Invents Act. But patent law has another" racer" the public via the prior art.

The doctrines of novelty and non-obviousness ask, in essence, whether the public was already in possession of the invention prior …