Can We Get Rid Of The Disclosure Myth For Patents?

from the what's-being-disclosed dept

In discussing patents, when push comes to shove, defenders of the patent system will often trot out the fact that the real purpose of the patent system isn’t necessarily about putting in place incentives for innovation (even if that’s what the Constitution clearly states), but to encourage “disclosure.” Sometimes when people start to focus too narrowly on the evidence that patents actually don’t help increase innovation, but often slow it down, defenders try to shift the focus and claim that it really is all about disclosure. Often this is accompanied by claims stating that without the patent system many great ideas would never be understood for future generations.


There’s a simple response to that, which is discussed in David Levine and Michele Boldrin’s Against Intellectual Monopoly book. If there’s economic benefit to keeping an idea secret, and the creator of that idea knows that he or she can keep it secret for greater than the length of the patent, then there’s still no incentive to disclose. They’ll simply keep the idea as a secret, because the economic benefit of it being a trade secret is much greater than the value of the patent. Alternatively, however, the people who will decide to patent their ideas, are those who recognize that the secret behind their invention is likely to become public no matter what, before the patent period has expired. For those people, there is economic benefit in patenting the idea and “disclosing” it — because doing so, actually gives them control over the idea for a longer period of time. However, that completely wipes out the argument that the patent system helps disclose ideas. After all, many won’t disclose because the idea is worth more while secret, and the only ones who will disclose are those who have ideas that are going to become public knowledge anyway.

Justin Levine now points us to a different critique of the “disclosure” claims, as discussed in a new paper from law professor Stephen McJohn. The paper notes that patents have been used as historical evidence of technological progress in the past, but that the disclosure aspect of today’s patents is effectively useless. The paper notes that patent attorneys and patent applicants are now taught to make patents as vague as possible. Both the way the patent law is written and the way case law has played out, it’s much better for patent holders to not just be vague, but to actively avoid looking at or referencing any prior art. In listing out the various rules for writing patents these days, the report pulls from a variety of sources to put together the following list:

Do not define the terms used in your claims. Do not identify the category of invention in the preamble to the claims. Do not identify features of the invention as “important.” Do not even use the word “invention” in the written description. Such claim drafting has been described as a trend toward “intentional obscurity.” The case law similarly encourages limiting the disclosure in the written description. Do not explain the flaws of competing technology, or the advantages of the claimed invention. If the invention is software-related, do not submit a copy of the program code. Do not do a prior art search to see if others have invented similar technology, because you will then have to submit any relevant prior art along with your patent application. Do not even keep up on technology in the field, because if you find out that others have developed relevant technology, you will likewise have to let the USPTO know. As to describing the “background of the invention”: one patent litigator regards it an “admission against interest.”

In other words, “disclosure” tends not to disclose very much. While the author of the paper regrets this aspect in noting that future historians will find current patents somewhat useless in understanding the technology and innovations of our time, it also serves as a fairly stark explanation for why the claims that the patent system is necessary for disclosing ideas is something of a myth.


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Comments on “Can We Get Rid Of The Disclosure Myth For Patents?”

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43 Comments
RandomThoughts (user link) says:

Mike, from your point of view (technology) I think you may be right in your views on the patent system. From my point of view (pharmaceutical) I think you may be a bit off base. I would leave a trackback, but I don’t know how (see how I don’t have a technology point of view?)

Disclosure for a molecule (drug) is very specific, the patent application lists pretty much everything you would care to know about the drug and what it attempts to treat.

Maybe the answer is that we have different systems and laws for different products? maybe drugs should have their own system?

sam (user link) says:

patents

mike…

you’ve been on this patent rant for quite awhile. we get it. you don’t like patents, and would rather be able to appropriate whatever you wish, to hell with whoever created it!

however, you’ve also stated that the US Constitution seems to deal with patents, and innovation (as opposed to discovery/disclosure).

could you point to the relevant articles within the Constitution that state this.

there have been numerous congressional actions around this, but i couldn’t find the Articles that back up your claim.

thanks

peace!

Adam (user link) says:

re: Disclosure is simply...

Richard Ahlquist wrote: a way for the government to get its first peek as required by law. That way they can snatch it up …

One of the major flaws of the patent system today as I see it is not enough examiners, with not enough skills, reviewing too many patents.

I would be genuinely surprised to learn that any significant numbers of patent examiners have either the skills necessary to recognize, or the time needed to pinpoint where in the massive government infrastructure, an invention should be “appropriated” in the name of national interest.

You are a very optimistic man Mr. Ahlquist.

Adam

MagicMan says:

It's Magic

“Disclosure for a molecule (drug) is very specific, the patent application lists pretty much everything you would care to know about the drug and what it attempts to treat.”

But Mike’s point is, would disclosure of the details have happened anyway by analysis, independant recreation or by reverse engineering? i.e. was the patent necessary for disclosure. Would the secret sauce have died with the inventor if the patent hadn’t have been granted?

There’s examples with Magician Harry Houdini, he was also an inventor and invented a diving suit in 1921 and patented it, but naturally he didn’t patent his magic tricks, they were trade secrets because that works better for magic tricks.

Yet we can still do all his tricks, it didn’t seem to stop the knowledge being propagated.

But then the ‘patents needed for disclosure argument doesn’t work anymore.’

Steevo (profile) says:

Patents have validity

The “bad” patents are mostly the new kind, software patents. Most of them are absolutely ridiculous. Amazon 1-click ordering? Puleeze!

But pharmaceutical patents as the second commenter mentioned are still quite necessary. It costs millions of dollars to develop and test a new drug.

How could you get the money to develop a new drug and test it only to have it stolen and sold for 2 cents a pill by other manufacturers, those who have manufacturing ability but aren’t troubled by the cost of the research and testing?

Someone has to put up the money for the development, and we as a society are way ahead with the new drugs being developed than if there were no money to do so. Without patents, there would be little money for this type of development.

Andy B says:

Re: Patents have validity

If the market can set a price of 2 cents a pill, and not having what amounts to artificially high prices (because a monopoly can set whatever prices they want) won’t pay for the cost of the research, then you are correct, it would be stupid for anyone in the free market to go to the effort of researching and testing new drugs. This may mean that the search for new drugs and other similar medical research could be government sponsored, in the interest of the people, specifically because of the huge difference between the research and manufacturing effort and cost.

Steevo (profile) says:

Re: Re: Patents have validity

Well, lots is government sponsored, an example being stem cell research in California which is funded by a $3 Billion initiative passed last year.

The problem with that would then be should you or I as taxpayers need the results of that publicly funded stem cell research how much would it be fair to charge us?

I am just afraid we would end up with them trying to charge us $100,000 for the stem cell treatments.

If that’s how it ends up and I think it will, why the hell should taxpayers have to fund such research if it’s not in any way in the public domain when completed?

And you know it won’t be. The trouble with government involvement.

Andy B says:

Re: Re: Re: Patents have validity

Who’s to say that government funded research _shouldn’t_ end up in the public domain? The people have already paid for the results of the research through taxes in this case — the results are owned by the people, and the information enters the public domain. If some company wants to use that information and charge $100,000 for a treatment, the free market will take care of that when someone else takes the same information, which they have a right to, and charges a fraction of that for the same treatment.

Anonymous Coward says:

Re: Re: Re:2 Patents have validity

Who’s to say that government funded research _shouldn’t_ end up in the public domain?

I should, but it doesn’t.

…the free market will take care of that when someone else takes the same information, which they have a right to…

Legally, under the present system, they do _not_ have that right.

Andy B says:

results of 20 second search

Article 1, Section 8, “Powers of Congress”:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

This is all that is said (which I think is proper, the framers having recognized that the exact methods used to ensure these goals have no place in the constitution and that it should be defined in laws enacted by Congress over time).

This means that the exact implementation, currently “patents”, is just one of many possible ways to “secure exclusive Rights”. I’m sure there are others, and now is the time history where this being explored.

step back (user link) says:

Re: results of 20 second search

Article 1, Section 8, Clause 8 of enumerated “Powers of Congress”:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

Andy B did not stop and step back to smell the flowery language.

Dis-cover: it means to Un-Cover as in to Dis-close or to take out of the closet and reveal it to the world. Part of making a dis-covery is the act of dis-closing that which you uncovered privately

Charles Griswold (user link) says:

Re: Mike's patent problem

Mike, give it up, dude

Everybody is sick of your incessant patent rants

I’m not, so 😛

With your degree in Public Relations and an MBA you have no say in technology matters…

*scratches head* Let me get this straight. Mike has a degree in Public Relations, and an MBA. He therefore has no say about technology.

Your logic, sir, baffles me.

Joe Smith says:

Re: Mike's patent problem

There’s another reason for being sceptical about the overall benefits of the patent system: having a patent (like angry dude says he has) seems to induce some form of mental illness in about 3/4 (in my experience) of patent holders. That mental illness imposes costs on society which should be attributed to the patent system.

Alexander Pensky says:

You've got it a little backwards...

Patents don’t encourage disclosure, they require it. It’s a tradeoff. IF the inventor wants the protection, s/he must, in exchange, agree to disclosure. Disclosure is supposed to benefit competitors and consumers, not the inventor.

The theory — whether you agree or not — is that with disclosure and protection, the invention is more likely to be produced and sold.

Anonymous Coward says:

Re: Re: You've got it a little backwards...

That’s exactly right. Lots of people don’t understand that important principle.

Patents were never supposed to protect the patent holder!

They are there to protect society by making inventors disclose their new art in exchange for patent protection.

Then explain why anyone would want a patent if they could otherwise use their idea without disclosing it.

EdB (user link) says:

Re: Re: Re: You've got it a little backwards...

Let’s pretend I invent a new kind of hammer. It’s a better hammer. Very unique – actually unlike any hammer before. If I produce it and sell it anyone else can copy my invention (because it is, after all, just a hammer) and make the money I was hoping to make. So I patent my invention. Now when someone else starts producing it without my permission (meaning paying me) I get to take them to court. I disclosed the hammer in my patent because simply selling one would have disclosed it to the world.

Tom says:

Only fools...

Only a fool would adhere to that list. If you write a patent following those rules, competitors would be dancing with glee. That patent wouldn’t survive 10 seconds of a Markman hearing. What’s the point of getting a patent if it’s not worth the paper it’s printed on when it comes time to sue for infringement?

The good patent practicioners follow essentially the opposite of that list and, as a result, tend to produce steel-clad legal documents that have no worry of being invalidated during an infringement suit.

DMM says:

Re: Only fools...

Actually, parts of that list are very accurate, but parts are also entirely wrong.

Most importantly, what is left off the list, is that patent applications are written so that those in the relevant industry can understand the technology and apply it. Some of those rules have been adopted so that courts don’t unnecessarily restrict the scope of the patent.

RandomThoughts (user link) says:

You want the government to run healthcare research? Ever been to the VA?

Just joking of course, and the government does fund and do (through the NIH) quite a bit of drug research. The research is only part of bringing a drug to market though. The time consuming and costly part of R&D is in the clinical trials to test the drug for efficacy and safety. The government generally doesn’t do that. That’s where the drug industry comes into play.

Most drugs are never brought to market because there are problems found with efficacy or safety. Course, sometimes they fail the trials after 10 years or so.

Anonymous Coward says:

Re: Patents and Disclosure

Alexander Pensky is right. Inventors must disclose their inventions to the public as a quid pro quo for the limited monopoly they’ll be receiving when they procure a patent.

Wouldn’t that disclosure probably occur anyway?

Disclosure is not the goal of the patent system. The goal is to “promote the progress of … useful Arts.”

The goal is to “promote the progress of … useful Arts” through disclosure. And since disclosure would occur anyway the patent system fails in that goal and simply tries to claim credit for something that would happen anyway. It kind of reminds me of some ancient civilizations that had high priests that conducted ceremonies every night to make the sun rise in the morning. The priests claimed credit for the sun’s rising, but it would have happened anyway. So in a way, belief in the patent system is kind of like a religious belief and there are plenty of high priests and followers that want to see it continue. Rational arguments mean little to true believers. It just makes them angry.

EliLilllyan says:

But did they make money?

“Eli Lilly had a blockbuster drug called Prozac. It went off patent and within 6 months, it lost 90% market share.”

According to an Eli Lilly spokesman it was 1 year and their earnings in the previous year were 2.2 billion from Prozac.
http://www.biopsychiatry.com/bigpharma/lilly.html

Even that I think is an exaggeration.

Perhaps they should reduce the patent to the drug approval time, (e.g. 6-10 years) then everyone is held back the same amount and the innovator gets only the advantage they can create for themselves.

I’m interested to explore ways to fix pharma, since it isn’t delivering medicines for new diseases, instead targeting existing profitable markets (prozac in the anti-depressant market).

It’s the area patents are claimed to be essential, but a lot of the lead time is drug approval time rather than the innovation time itself, so the patent is correcting for the delay in approval. Which is a special case, not applicable in most other markets.

RandomThoughts (user link) says:

Once a drug is on the market, it is very easy to reverse engineer it. Why would anyone do the research if they could just copy someone else?

Delivering new drugs? All of the drug companies are working on cancer drugs, all are working on Alzheimer’s drugs. Do you think taking away patents would encourage companies to do more research? Why would they? It just doesn’t make sense.

EliLilllyan says:

For the first mover advantage

“Why would anyone do the research if they could just copy someone else?”

For the 1 year 2.2 billion sales lead, the lead they make for themselves by being first.
It’s how it works in other markets, e.g. software. The problem with pharma is the testing time is so long to neutralize that first mover advantage.

RandomThoughts (user link) says:

EliLilllyan, I didn’t understand what you were getting at earlier. Sure, they have the profit for that one year, but once generics hit, the profit would go away. What pays for the drugs that don’t ever get to market? Without patents, what drives investment?

Your article was interesting though. I have to wonder why that 19 year old was in the Cymbalta trials if she wasn’t depressed? People need to know that drugs can be deadly, can it be worth the little money you get for participating in clinical trials?

Course, getting people enrolled in trials is one of the major costs of bringing a drug to market.

RandomThoughts (user link) says:

When the NIH does research on a drug, if it turns out to show promise, they negotiate with the industry on the rights. They evaluate the chance of that company bringing the drug to market and the success that is possible with their research. Sometimes price is an issue, sometimes they try to require price breaks for consumers.

For some reason, there is no public disclosure of how much a drug company agrees to pay. I believe that information should be disclosed.

This is about the same for universities and the research they do.

angry dude says:

Joe

Hey, screw you, little Joe,

If you really think that people like Bob Kearns impose
“costs on society” then fuck you, my little disoriented friend..

As for me… I am a perfectly normall and honest human being, in everyday life.
It’s just when some big crooks try to rob me of my achievements and some little retards like you and Mike say that this is in fact OK, then I get really really pissed off…

Thomason says:

Disclosure. as req'd

In another of what others call an “incessant rant,” Mike confuses the value of a patent system with the flaws of those who administer it. Hypothetically, if someone a Motor Vehicles issues driver’s licenses when they shouldn’t, that is not a reason to eliminate drivers licenses. Just because the patent office does no administer the program as best it might be, then that is little reason to eliminate patents.
Even is anyone buys into the theory that patents are written purposefully vague, then if the patent office accepts and grants those, then bureaucrats not patents are the culprit. So too, if the courts use specificity against patent applicants who provide complete details, then again, then therein lies the fault and the point where improvement is needed.
The system is far from perfect, but the goal should be improvement, not elimination.

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