We award patents to inventors because we hope to encourage new ideas. Forthis reason, the fundamental requirement for getting a patent is that youhave invented something new.It is curious, then, that patent law itself purports to pay no attention towhich aspects of a patentee's invention are in fact new. A patentedinvention is legally defined by its claims – written definitions of theinvention. And those written definitions virtually never call out what itis that is new about the patentee's

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... ntion.Even if the parties do identify the novel element of an invention, the lawpurports not to care. Long-standing patent law doctrine has decried anyfocus on the "point of novelty" of an invention. The United States Court ofAppeals for the Federal Circuit evaluates the claim as a whole, not justthe piece of the claim that the patentee actually added to the storehouseof knowledge. As the court frequently puts it, "there is no legallyrecognizable . . . 'gist' or 'heart' of the invention."It turns out, however, to be hard to sustain a rule that a law concernedwith novelty will pay no attention to the point of novelty. And sopoint-of-novelty issues crop up in a number of different doctrines inpatent law, from figuring out who counts as an inventor to whether theinventor has disclosed the "best mode" of practicing the invention to whenthe sale of a product exhausts the patentee's rights in the patent. Courtsare inconsistent in whether and how they consider the point of novelty inthese doctrines and more. But when the Federal Circuit presented with aquestion in point-of-novelty terms, it most often falls back on the mantrathat there is no point of novelty to an invention, even if it meansdiscarding long-standing precedent.It's time to rethink the no-point-of-novelty doctrine in patent law. Iargue that ignoring what is novel about patentee's invention makes littlesense as an across-the-board matter, and leads to a variety of harmfulconsequences. While refusing to focus on the point of novelty serves somevaluable purposes, there [...]