Academic journal article Vanderbilt Law Review

Dynamic Patent Disclosure

Academic journal article Vanderbilt Law Review

Dynamic Patent Disclosure

Article excerpt


Those who tout the role of disclosure as a benefit of the patent system emphasize-as the Supreme Court has-that the information in patents "add[s] to the general store of knowledge [and is] of such importance to the public weal that the Federal Government is willing to pay the high price of . . . exclusive use for its disclosure, which disclosure . . . will stimulate ideas and the eventual development of further significant advances in the art."1

As I excavate in this Article, the current state of patent disclosure-which many think is poor and does not achieve its objective of stimulating innovation-is impoverished in part because it occurs so early in the process of innovation, at the time a patent is filed. The law mandates no further disclosures after this point. So much of the innovation process, from refinement to prototyping to market research to mass production, has yet to occur at the moment of patent filing. Yet the law does not require disclosure of so much of this valuable information related to a patented invention. That is, patent disclosure is early and static. In this Article, I propose requiring more dynamic patent disclosure of important information generated post-patent filing. In particular, I advocate that patentees should be required to divulge all commercialized products they or their licensees make, linking the products to the patents they reasonably think cover those products. This form of dynamic patent disclosure would better effectuate patent law's goal of promoting innovation by revealing helpful technological information, communicating clearer notice of patent scope, and generating useful empirical information to study the effectiveness of the patent system in promoting innovation and commercialization.

Part I introduces the role and state of disclosure in the patent system. Part II proposes that patent law implement at least some forms of dynamic patent disclosure, underscoring the benefits of doing so. Part III addresses and seeks to resolve some of the complications of implementing a form of dynamic patent disclosure, namely, costs, reliability, and spillover effects.

I. Static Patent Disclosure

At its core, American patent law exists to stimulate scientific and technological innovation.2 The law seeks to effectuate this goal by granting the reward of time-limited exclusive rights in certain worthy inventions to their creators as an incentive to create in the first place.3 In addition, as the courts have long noted, American patent law seeks to stimulate innovation by requiring patentees to disclose certain information about their inventions. As the U.S. Supreme Court has explained,

[T]he quid pro quo [for the patent grant] is disclosure of a process or device in sufficient detail to enable one skilled in the art to practice the invention once the period of the monopoly has expired; and the same precision of disclosure is likewise essential to warn the industry concerned of the precise scope of the monopoly asserted.4

In furtherance of disclosure, American patent law contains four statutory disclosure requirements. The first structures the content a patentee must present. A patent application must contain a specification describing the invention in writing and concluding with one or more claims "particularly pointing out and distinctly claiming the subject matter which the inventor . . . regards as the invention."5 The other three statutory requirements-written description, enablement, and best mode6-are best understood as obliging disclosure of certain content within the specification. The writtendescription requirement asks the applicant to divulge enough information to indicate that the inventor is in possession of the claimed invention.7 To enable the invention, the patent applicant must demonstrate in the specification to "any person skilled in the [relevant] art [how] . . .to make and use the [invention],"8 without "undue experimentation. …

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