68 Pages Posted: 7 Apr 2008 Last revised: 1 Apr 2009
Date Written: 2009
Patent law is premised on the onward march of science and technology. Patent law encourages cumulative innovation, both by dangling the patent before the inventor as an incentive to invent in the first instance and by requiring him to disclose to the public his invention so that science can progress by building on the divulged knowledge. Patent disclosure is essential. It indirectly stimulates others' future innovation by revealing to them the invention so that they can use it fruitfully when the patent term expires and so that they can design around, improve upon, or be inspired by the invention both during and after the patent term. Judicial decisions and nearly all legal scholarship on patent law have therefore not surprisingly consistently cited disclosure's critical role in the patent system, but they do so without much theoretical or institutional analysis. The rare handful of articles addressing the issue of patent disclosure suggests that disclosure is and ought to be of almost no importance in designing the patent system. This Article disagrees and argues in favor of its centrality in the patent system. Given this deserved centrality, this Article maintains that patent disclosures should be, well, patent, so that inventors can use these disclosures to culminate scientific and technological progress more effectively, thereby fulfilling the underlying premise of the patent system-stimulating innovation. The Article contends that the disclosure function is underperforming due to four systemic reasons-the inadequacies of the writer, the index, the reader, and enforcement-and suggests how to improve them. Surely, invigoration of the patent system's disclosure function carries with it costs, which this Article explores, suggesting they might not be too significant in relation to the benefits that patent disclosure offers in terms of growth of innovation. The Article then posits how invigoration of the patent system's disclosure function bridges what has seemed to be an impassable gap between those who believe in strong patent rights and those who think instead that inventions and information about them should be freely available.
Keywords: patent law, intellectual property, disclosure, innovation, invention, technology, information
JEL Classification: O31, O33, O34, O38, O40
Suggested Citation: Suggested Citation