Courts often state that patents are justified by disclosure theory, the idea that patents are awarded as quid pro quo for the public disclosure of inventions. Economists have long argued that disclosure theory should be accorded no weight in the design of the patent system because patented inventions would have been disclosed anyway. Even the few legal scholars who dispute these economic arguments agree that, in practice, patents are currently not useful as technical sources for other innovators. This Article challenges all these arguments, arguing not that disclosure theory is a valid justification for the patent system, but rather that the benefits of full technical disclosures are stronger than is generally believed, and that these benefits probably outweigh any incremental loss in innovation incentives. Using results from a new survey of nanotechnology researchers and case studies of individual patents, this Article shows that patents do contain useful technical information that is not available elsewhere. This technical content could be improved, however, in at least three ways: stronger enforcement of disclosure requirements (including through an obligation to respond to good faith reproducibility questions from skilled researchers), elimination of legal barriers to using patents as technical sources, and improved access to patents through peer production. These changes will help defuse the tension between patents and the open culture of science.
Wednesday, March 23, 2011
Do Patents Disclose Useful Information?
Posted by Lisa Larrimore Ouellette
I recently uploaded a revised draft of my current working paper, Do Patents Disclose Useful Information?, on SSRN. I am grateful for all the feedback I have received on this paper so far, and I welcome more—please feel free to email me. Here is the abstract: