Contextualizing Patent Disclosure
One of the main justifications for a patent system is that patents disclose useful technical information that others can learn from. However, patents are not performing this function well. The average patent is written in legalese, uses vague language, and is hard to connect to commercial activity. Legal scholars have responded with calls to improve the patent document through better writing, more examples, and better enforcement of patent doctrines. The courts have sought to ensure that patent specifications are robust and justify the grant of a monopoly. This follows from the Supreme Court’s characterization of technical teachings within a patent as the “quid pro quo” for the patentee’s exclusive rights.
The problem with these approaches is that they focus exclusively on patent content, and overlook the many ways in which patent context matters to the dissemination of technical information. A review of the ways in which patents truly promote the progress reveal that patent information beyond, not just within, a patent’s four corners, can shape the extent to which the subject invention of the patent spreads beyond the inventor. Whether a patent is in force, is commercially important, is subject to licensing or other commitments, or is held for defensive or offensive reasons, for example, can determine whether and how the teachings within the patent spread.
In this Article, I argue that we need to rethink the concept of patent disclosure. Rather than focusing only on the content of the patent, we should keep in mind the context of the patent, and how the greater availability of contextual information about the patent can promote the progress. This contextual information represents not only the final “product” of a patent as issued, but the “process” by which it is made and used, the timing and terms on which it is provided to the world, and the publicly reported transactions in which the patent is involved. Making contextual information more accessible would do much to reinvigorate the disclosure function of the patent system—in many cases, using already existing information.
Associate Professor of Law, Santa Clara University School of Law; 2013–2015 White House Senior Advisor on Innovation and Intellectual Property, Office of Science and Technology Policy.