Breaking America’s Patent Stalemate

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Professor Janet Freilich shared her expert opinion on prophetic patents with Project Syndicate.

Economic growth is increasingly reliant on technology-based industries. That has made reforming the US patent system a subject of renewed focus – and of a contentious and deadlocked debate.

Many patent owners are lobbying to remove limits on eligible inventions, but opposition from other stakeholders, including several software firms, has stalled proposed legislation. Reformers similarly disagree on whether “patent trolls” – firms whose only business is filing patent-infringement lawsuits – are a drag on truly innovative companies, or whether efforts to combat trolls have weakened the US patent system and innovation. The critical role of innovation in addressing the COVID-19 pandemic has only heightened such concerns.

One way in which patents fail to disclose accurate information stems from the practice of including hypothetical experiments and results, known as “prophetic examples,” in ways that are hard to distinguish from real data. Of course, fabricating results in a scientific paper would be considered fraudulent. But, as Fordham Law School’s Janet Freilich has documented, prophetic examples are common in granted US patents.

Freilich found that at least 17% of examples in recent US chemical and biological patents are prophetic, and at least 24% of patents with examples include some that are prophetic.

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