Patents, Promises, and Reproducibility

24 Pages Posted: 31 Mar 2017 Last revised: 12 Sep 2018

See all articles by Jacob S. Sherkow

Jacob S. Sherkow

New York Law School; Columbia University - Department of Health Policy and Management; Center for Advanced Studies in Biomedical Innovation Law

Date Written: September 5, 2018

Abstract

Cutting-edge scientific research faces a global reproducibility crisis: scientists often cannot faithfully reproduce their colleagues’ experiments. Several domestic patent law doctrines would appear to mitigate this problem, including the enable­ment doctrine in the United States, the promise doctrine in Canada and the Commonwealth of Nations, and Europe’s industrial application doctrine. But these doctrines’ disconnect from scientific practice and their broader international harmonization make them weak tools to combat irreproducibility. Given the increase of cross-border scientific collaboration and uncertainty surrounding cer­tain types of new technologies, these doctrines seem to exacerbate the reproducibil­ity crisis. Making these doctrines fulfill their promises to encourage reproducible, technical disclosures will likely require effort from a variety of domestic institu­tions, including domestic patent offices, courts, legislatures, and universities.

Keywords: patent, science, reproducibility, enablement, promise doctrine, industrial application, intellectual property, Canada, Europe

JEL Classification: K11, K19, K39, O34, K00

Suggested Citation

Sherkow, Jacob S., Patents, Promises, and Reproducibility (September 5, 2018). Georgetown Journal of International Law, 2018, Vol. 49, pp. 957-980. Available at SSRN: https://ssrn.com/abstract=2944180

Jacob S. Sherkow (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212.431.2355 (Phone)

HOME PAGE: http://www.nyls.edu/faculty/faculty-profiles/faculty_profiles/jacob-s-sherkow/

Columbia University - Department of Health Policy and Management ( email )

600 West 168th Street, 6th Floor
New York, NY 10032
United States

Center for Advanced Studies in Biomedical Innovation Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/cebil/staff/

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