Science Fiction: Fictitious Experiments in Patents

Science, Vol. 364, No. 6445, p. 1036, June 2019, DOI: 10.1126/science.aax0748

Posted: 24 Jun 2019

See all articles by Janet Freilich

Janet Freilich

Fordham University School of Law

Lisa Larrimore Ouellette

Stanford Law School

Date Written: June 14, 2019

Abstract

Although it may surprise scientists, one can receive a patent in many jurisdictions without implementing an invention in practice and demonstrating that it works as expected. Instead, inventors applying for patents are allowed to include predicted experimental methods and results, known as prophetic examples, as long as the examples are not written in the past tense. Allowing untested inventions to be patented may encourage earlier disclosures about new ideas and provide earlier certainty regarding legal rights — which may help small firms acquire financing to bring their ideas to market. Yet granting patents too early may also discourage researchers from doing the work to bring ideas to fruition. Even if allowing untested inventions to be patented is desirable, we think prophetic examples deserve closer scrutiny, and clearer labeling, because of the likelihood that they are unnecessarily confusing — particularly to scientists, many of whom read patents but are unlikely to appreciate that not all the claims are based on actual data.

Keywords: patents, disclosure, prophetic examples, interviews, USPTO

JEL Classification: O31, O34, O38

Suggested Citation

Freilich, Janet and Ouellette, Lisa Larrimore, Science Fiction: Fictitious Experiments in Patents (June 14, 2019). Science, Vol. 364, No. 6445, p. 1036, June 2019, DOI: 10.1126/science.aax0748 , Available at SSRN: https://ssrn.com/abstract=3405695

Janet Freilich

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Lisa Larrimore Ouellette (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305
United States

HOME PAGE: http://law.stanford.edu/directory/lisa-larrimore-ouellette/

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