Science Fiction: Fictitious Experiments in Patents

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