24 Pages Posted: 30 Nov 2016 Last revised: 14 Dec 2016
Date Written: November 28, 2016
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.”
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.
Notes: This Article is published as part of a Vanderbilt Law Review Symposium on "The Disclosure Function of the Patent System."
Keywords: patent, disclosure, dynamic, commercialization, market, marking, Orange Book
JEL Classification: O31, O34
Suggested Citation: Suggested Citation
Fromer, Jeanne C., Dynamic Patent Disclosure (November 28, 2016). Vanderbilt Law Review, Vol. 69, p. 1715, 2016; NYU School of Law, Public Law Research Paper No. 16-51; NYU Law and Economics Research Paper No. 16-41. Available at SSRN: https://ssrn.com/abstract=2876886