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The Research Patent

Posted by on Tuesday, January 26, 2021 in Articles, Volume 74, Volume 74, Number 1.

Sean B. Seymore | 74 Vand. L. Rev. 143 (2021) |

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law’s broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new form of intellectual property—a “research patent.” This regime would allow inventors to obtain patents on research inputs and extract their full value through licensing and enforcement. Research patents would impose minimal administrative costs on the patent system and ultimately promote the disclosure, development, and use of early-stage inventions. At a broader level, the proposed regime raises the theoretical question of how allowing patent protection on early-stage inventions like research inputs serves patent law’s instrumental justification of promoting scientific progress. It also raises significant normative and policy questions about technology-specific patentability standards and their role in furthering the goals of the patent system.

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Sean B. Seymore