By Jason Rantanen
This week I will be attending the Intellectual Property Scholars Conference, where I will be enjoying many other IP scholars' work, some of which I will discuss in subsequent posts, and presenting my own work in progress entitled Peripheral Disclosure. In this Essay, I argue that that the disclosure function of patents has been greatly undervalued, not because patents succeed at forcing inventors to disclose useful information about their inventions in the patent document, but because patents free inventors to voluntarily share information about their inventions in forms other than the patent itself while retaining the ability to monetize their inventions.
The abstract is below. For those who are interested, a copy of the paper is available on SSRN here (it's currently a relatively short piece). As this project is very much a work in progress, all comments are appreciated.
The requirement that inventors disclose their inventions in return for a patent is one of the primary justifications for the patent system. Yet that justification has been subject to substantial criticism, and with good reason. Conventional disclosure scholarship focuses on inventor’s disclosure within the patent itself, a document that often fails to provide meaningful information to others. As a result, conventional disclosure theory has largely been relegated to the category of a straw man that scholars address perfunctorily when criticizing the patent system.
This Essay rejects the idea that patents serve little to no disclosure function, not by demonstrating that patents themselves convey useful information, but by pointing to other information exchanges that would not occur but for the existence of a patent system, a concept I call "peripheral disclosure." This information plays a critical role in encouraging prospective technological invention. In essence, I argue that the greatest benefit of patents is not in the information they contain, but rather in the numerous peripheral disclosures they permit, from scientific papers about new inventions to marketing materials containing technical content to the informational benefits of self-disclosing inventions. Without patents, none of these disclosures – all of which may provide crucial information to future inventors – would be possible.
Update: DePaul law student Daniel Rogna will be live-blogging IPSC at http://ebookisms.com/category/ipsc/. This is a terrific conference to follow, as it is frequently a forum where significant new scholarship is revealed, such as last year's Lemley, Cotropia, Sampat piece on applicant submitted prior art.