Do Patents Disclose Useful Information?

Article excerpt

I. INTRODUCTION

Many have lamented the negative impact of patents on the norm of open science and the "commercialization" of basic research as more universities seek patents. (1) Whether these scientific norms are descriptive or aspirational, empirical evidence indicates that patents have decreased openness and sharing among scientists. (2) In theory, however, the standards for obtaining a patent mirror those for publishing in a prestigious peer-reviewed scientific journal: researchers identify discoveries that are useful, novel, and nonobvious, and disclose those discoveries so other researchers can build on them. (3)

The Supreme Court has said that patent disclosures "will stimulate ideas and the eventual development of further significant advances in the art," and that these "additions to the general store of knowledge are of such importance" that they are worth the "high price of ... exclusive use." (4) Under this disclosure theory, patents are awarded as a quid pro quo for disclosing the invention (rather than keeping the information secret, such as with trade secrets). Although disclosure theory remains popular with courts, scholars have criticized its prominence as a justification for the patent system. (5) Their most compelling argument is that inventors will only seek patents on inventions that would have been disclosed anyway. (6) Recently, several other legal scholars have defended disclosure theory against these criticisms and called for invigorated disclosure. (7) I argue that this debate should be reoriented: we do not grant patents because of disclosure--we require disclosure because we grant patents.

Although disclosure theory commentators disagree as to whether disclosure should be a central concern of the patent system, they agree that the answer to the question posed in this Article's title is "no": patents do not currently disclose much useful technical information to researchers. (8) close examination of existing evidence, however, suggests that many researchers do use patents as a source of technical information. (9) This Article adds to the empirical evidence with a new survey of nanotechnology researchers and with more detailed analysis of specific patents. The nanotechnology patent literature is extensive, but most nanotechnology researchers are academics or basic researchers who publish in traditional scientific journals. I find that even for these researchers, patents contain useful, nonduplicative technical information, but my survey data suggest that patents could be even more informative. Because respondents' subfields ranged from nanoelectronics to drug delivery to energy, the results suggest that patent disclosures have informational benefits across a broad range of technologies. (10)

The legal debate has focused on whether disclosure is a justification for the patent system, but this leads to the conclusion that because disclosure is a weak justification, patent disclosures are unimportant except as necessary to claim the invention. Given that we have a patent system, however, the relevant question is whether the benefits of strong disclosure outweigh its costs--and this Article demonstrates that disclosure has stronger benefits than previously appreciated. These benefits probably outweigh any incremental loss in innovation incentives caused by further strengthening disclosure. I suggest that enforcing and expanding upon the current disclosure requirements, and making patenting more like publishing in a premier scientific journal like Nature or Science, will help resolve the tensions between science and patent law.

This Article makes a number of distinct contributions to the growing literature on patent disclosure. First, after summarizing existing disclosure requirements and examining the current debate over disclosure theory, Part II presents the first comprehensive review of existing surveys of the technical value of patent disclosures and concludes that, contrary to the claims of previous commentators, many researchers do use patents as a source of technical information. …

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