Do patents disclose information that is technically useful to researchers in the same way scientific publications are? The Supreme Court has described disclosure as one of the main purposes of the patent system in many cases. But most patent scholars argue that researchers don’t read patents because (1) patents don’t actually have useful technical information—they are just confusing legalese; and (2) researchers wouldn’t read patents anyway because they’re worried about being liable for willful infringement.
I decided to study this issue by conducting my own survey, since it turns out that we have relatively little information about how researchers actually use patents. Most previous surveys predate the ready availability of patents online, but even these surveys suggest that patents are more useful than many commentators suggest. For example, a 1994 survey of manufacturing firm R&D managers is frequently cited for propositions like that “scientists don’t in fact gain much of their knowledge from patents, turning instead to other sources.” But what it actually found is that about 50% of U.S. respondents said patents were “moderately” or “very” important as a source of information for a recent project, which is less than the 62% who said the same of scientific publications, but which is still a sizable number. (Interestingly, patents were by far the most important source of information in Japan!)
I focused my survey on researchers in nanotechnology, partly because that’s the field I did my Ph.D. work in, but also because it is an emerging field where most of the work is still being done by basic researchers—which means there’s a vibrant scientific literature in addition to the patent literature, and one might thus expect patents to be even less useful than in more applied fields. You can find all the details about my 211 respondents and the specific survey questions in my article, Do Patents Disclose Useful Information?, but I’ll highlight four key results:
- 64% of the respondents have read patents.
- Of respondents who were reading patents to look for scientific information (rather than for legal reasons), 60% found useful technical information. They said things like:
- “Patents are a useful source of information on how others have approached particular technical problems and can also help you from going down a road that has already been traveled.”
- “Patents offered some plausible views as to what we were seeing in our own research.”
- “Protocols or recipes for preparing samples or performing experiments are described that are not found in other published literature.”
- “The way a new technology is described is much more reliable and reproducible in a patent than in a scientific paper” because in papers “academic researchers purposely remove essential steps for reproducing data,” so “I trust patents more when I need to try other people’s technologies.”
- Even though patents were useful for many scientists who read them, only 38% of patent readers thought the patents they read were reproducible.
- Only 3 out of the 211 respondents might be characterized as avoiding patents because of willful infringement concerns.
Some of my former nanotech colleagues and I also looked at specific nanotechnology patents, and our findings complement the survey results: we found that there was useful technical information in the patent literature that was not duplicative of the scientific literature, but we also found that many patents did not contain all the details that we thought would be necessary to reproduce the claimed inventions.
I think these results show that the disclosure function of patents is working to at least some extent, at least in nanotech: patents can be a useful source of technical information, and willful infringement concerns are not preventing most nanotech researchers from looking at patents. But there are still problems with patent disclosure: the result that only 38% of patent readers think those patents are reproducible raises questions about whether disclosure ought to be improved just to meet current legal requirements.
Now, this does not mean that technical disclosures are a justification for the patent system’s costs—I think the reason we have a patent system is to incentivize the creation and commercialization of new inventions. To me, the interesting question is: given that we have a patent system, how much disclosure should we require? In other words, how much benefit are we getting from patent disclosures, and how does that compare to the costs to innovation incentives and the administrative costs of requiring that disclosure? And could we benefit more by requiring better disclosures without harming innovation incentives? I think these questions open up at least three interesting avenues for further research:
First, what kind of useful information do scientists find in patents, and how does the use of patent disclosures vary by field? Do researchers use patents primarily to build on the patented invention, or are there significant spillover benefits for users not contemplated by the patentee? I plan to expand my survey into additional fields, including more industry researchers, and to complement large-scale survey results with more in-depth interviews. I expect results to look very different for software developers than for pharmaceutical researchers, but it will be interesting to see how. Perhaps areas where disclosure isn’t working well can learn something from areas where it is.
Second, how can we measure the benefit of improved disclosure? In a new working paper on patent policy experimentation, I suggest that it might be possible to make some progress on this using small-scale experiments. For example, programers could be asked to implement fictitious software patents with varying types of disclosure (e.g., as part of an undergrad CS class, or in something like this experiment with a TopCoder competition), and their programs could be compared based on the time needed to produce a functioning program and the program’s quality based on metrics such as runtime.
And third, if we decide that it is worth improving patent disclosures, how do we do that? Examiners I’ve spoken with prefer to focus on prior art issues than on enablement, which makes intuitive sense to me: even having a Ph.D. in physics, there are only a tiny number of inventions for which I really would feel comfortable determining whether “undue experimentation” would be required for a PHOSITA to practice the claims. Is it possible to make it easier for examiners to accurately evaluate enablement? And are there ways to improve the value of patent disclosures to scientists beyond better enforcement of current legal requirements?
I don’t know the answers to these questions, but I’d like to figure them out; my hope is that further increasing scientists’ engagement with the patent literature will benefit both science and patent law. And I welcome suggestions from IPWatchdog readers about any of these research directions!