Can We Get Rid Of The Disclosure Myth For Patents?

Studies

from the what's-being-disclosed dept

In discussing patents, when push comes to shove, defenders of the patent system will often trot out the fact that the real purpose of the patent system isn’t necessarily about putting in place incentives for innovation (even if that’s what the Constitution clearly states), but to encourage “disclosure.” Sometimes when people start to focus too narrowly on the evidence that patents actually don’t help increase innovation, but often slow it down, defenders try to shift the focus and claim that it really is all about disclosure. Often this is accompanied by claims stating that without the patent system many great ideas would never be understood for future generations.

There’s a simple response to that, which is discussed in David Levine and Michele Boldrin’s Against Intellectual Monopoly book. If there’s economic benefit to keeping an idea secret, and the creator of that idea knows that he or she can keep it secret for greater than the length of the patent, then there’s still no incentive to disclose. They’ll simply keep the idea as a secret, because the economic benefit of it being a trade secret is much greater than the value of the patent. Alternatively, however, the people who will decide to patent their ideas, are those who recognize that the secret behind their invention is likely to become public no matter what, before the patent period has expired. For those people, there is economic benefit in patenting the idea and “disclosing” it — because doing so, actually gives them control over the idea for a longer period of time. However, that completely wipes out the argument that the patent system helps disclose ideas. After all, many won’t disclose because the idea is worth more while secret, and the only ones who will disclose are those who have ideas that are going to become public knowledge anyway.

Justin Levine now points us to a different critique of the “disclosure” claims, as discussed in a new paper from law professor Stephen McJohn. The paper notes that patents have been used as historical evidence of technological progress in the past, but that the disclosure aspect of today’s patents is effectively useless. The paper notes that patent attorneys and patent applicants are now taught to make patents as vague as possible. Both the way the patent law is written and the way case law has played out, it’s much better for patent holders to not just be vague, but to actively avoid looking at or referencing any prior art. In listing out the various rules for writing patents these days, the report pulls from a variety of sources to put together the following list:

Do not define the terms used in your claims. Do not identify the category of invention in the preamble to the claims. Do not identify features of the invention as “important.” Do not even use the word “invention” in the written description. Such claim drafting has been described as a trend toward “intentional obscurity.” The case law similarly encourages limiting the disclosure in the written description. Do not explain the flaws of competing technology, or the advantages of the claimed invention. If the invention is software-related, do not submit a copy of the program code. Do not do a prior art search to see if others have invented similar technology, because you will then have to submit any relevant prior art along with your patent application. Do not even keep up on technology in the field, because if you find out that others have developed relevant technology, you will likewise have to let the USPTO know. As to describing the “background of the invention”: one patent litigator regards it an “admission against interest.”

In other words, “disclosure” tends not to disclose very much. While the author of the paper regrets this aspect in noting that future historians will find current patents somewhat useless in understanding the technology and innovations of our time, it also serves as a fairly stark explanation for why the claims that the patent system is necessary for disclosing ideas is something of a myth.