Recent Scholarship: Do Patents Disclose Useful Information?

By Jason Rantanen

There is a significant body of recent scholarly literature questioning whether patents are effective at disclosing technological information about new inventions.  This debate is important because one of the principal justifications for the patent system – especially as viewed by the courts – is that it encourages inventors to disclose the technological underpinnings of their inventions through the incentive of a patent.  Criticisms of the disclosure function of patents generally fall into two categories: arguments that patents are not effective mechanisms for conveying technical information and arguments that follow-on inventors do not read patents for their technical content.

In her recent article Do Patents Disclose Useful Information?, Lisa Larrimore Ouellette tackles this issue head-on, offering empirical support for the position that patents do convey useful information.  Ouellette, herself a former nanotech scientist, provides the results of a survey conducted of nanotechnology researchers that suggests that, at least in that industry, researchers look to patents for their technical teachings, and that they believe that patents provide useful information that is not available elsewhere – with one notable exception, the problem of reproducibility.  Based on these findings, Ouellete argues that we do not grant patents because of disclosure; rather, we require disclosure because we grant patents.

The complete paper is available on ssrn:   

60 thoughts on “Recent Scholarship: Do Patents Disclose Useful Information?

  1. 60

    Exactly Dan. And, any paper that discusses disclosure must discuss this point in great depth because probably more information regarding a patent application is disclosed through secondary sources than through the patent application itself.

  2. 59

    Do not miss that because one must disclose to get a patent, that information as a whole in companies is opened up. All the information that you read in trade journals, papers, technical magazines, posts, etc. would not be there but for patents. If there were no patents, companies would just say, you may not speak about this at all.

  3. 58

    And I even get the empty Mailings while I was in FLA.
    And I even get the Fax of Aug. 26,1998 telling me to show it to a Lawyer… Peter was the one to show it to. LOLOLOL and he was threatening to have me arrested. I guess Nurse Ratchett, now that I figured out what you couldn’t, it makes me smarter than you.
    And I even get why YOU Nurse Ratchett should never have NEVER quit your Day Job.
    And now I get everything. And Roy I suppose I owe you everything. But too bad not Lawyer would help me. But I suppose that is Peter’s other problem!
    But to make matters very clear. Acting as a Lawyer. Having me sign a Power that clearly stated you were in
    power of 5,560,312 and then telling me you will have me arrested Peter, was just not a legal machination I could get my head around. But I can now.

  4. 57

    I wish all of you would call it as it should be called. Peter is just in the same Crime line. You think doing what he did makes him a first to File on my CIP? I saw him at his Office as a Lawyer at least Twicw. Does he think because I was home here he can put a Mask on and then tell me to sign a Power for him as Atty. of Record for Me, and then he changes it to read something else. Is that why the CIP is on the second one? The Court will see right through that. As I am sure they already have. What he did was no different. As a matter of fact I would say he went a step beyond.

  5. 56

    ….and I wish you (with no own knowledge how FItF works in reality) would not announce that FItF means the end of the world. Americans can adapt. Intelligance is the capacity to handle change.

  6. 55

    You’ve lost me there. One patents to gain the right to exclude. Without a patent system there would be far less investment in innovation. A good patent system does indeed promote the progress.

  7. 54

    That’s because companies can’t survive by doing tomorrow exactly what they did yesterday. Change or die, right?

    Then why patent at all? If someone else is already doing it, then you have to innovate to survive and the mere fact that someone else is already doing it should be its own driver to innovation?

    Your logic fails the sniff test.

  8. 53


    I view the Best Mode issue as indeed a form of Trade Secret, but not a critical one, as any patent that demands more than “undue experimentation” fails for other reasons. That being said, we feed the wolf a little bit here and blithely expect it to go away, but we all know what happens when you feed the wolf..


    I really wish you would not gloss over the differences beween the US and EP patent worlds with your constant comparison and implied alck of difficulty in Europe. The two worlds are different in some very critical contexts such as start-ups and entreprenuerialship. There are just too many of these types of fundamental differences to be able to blankly state “We have no such problems here.” We are not the same as your “here.”

  9. 52


    Lurking, keeping your best mode secret is a form of trade secret protection. It allows one to obtain a patent, but keep the critical trade secret information on how to practice it in a commercially viable manner secret.

  10. 51

    Don’t understand that Lurking Chicken Little. We have had First Inventor to File together with Prior User Rights in Europe since 1978. Yet Trade Secrets are as much part of the present landscape as they ever were in the past.

    Prior use means what it says: you can continue with exactly those acts that you started before the other fellow filed. In reality, it is not much of a defence to infringement, and seldom invoked. That’s because companies can’t survive by doing tomorrow exactly what they did yesterday. Change or die, right?

  11. 50


    Two pillars that will be removed in the present version of Patent Reform:

    1) Best Mode
    2) Trade Secret

    While Best Mode may be deemed a lesser item, the legislative effects of dampening Trade Secret impacts, including extensive Prior User rights makes a mockery of any drive to disclose. If someone can provide a cogent argument for Large Corp to choose to disclose if there is no repercussion for maintaining an item in Trade Secret status until someone else obtains a patent and brings suit, I would love to hear it.

    So now, not only can everyone get the milk for free, there is no impact from hoarding your own milk and not sharing.

  12. 49

    Patents may not necessarily disclose useful information in many industries, or disclose it in a way that’s particularly useful or easily readable (due to litigation interests, we’re all forced to use “in some embodiments” more than we should), but by requiring at least some disclosure, patents destroy the possibility for the inventor to also claim their invention is a trade secret. As a result, there’s no incentive for an inventor to keep information hidden – this was also the intention of the best mode requirement.
    So, as a result of the required disclosure in a patent application, inventors will frequently publish other, much more useful information: source code, white papers, functional documentation, flow charts, internal class definitions, etc. And that information is highly useful.

    Do patents themselves disclose useful information? Not always. Do patents encourage other disclosure of useful information? Absolutely.

  13. 48

    “questioning whether patents are effective at disclosing technological information about new inventions”

    Think about it. You cannot claim what you do not disclose. So who cares. The patents will likely have no value and the patentee will have spent 100’s of thousands or more and have nothing to show for it. These “scholars” should find something more productive to do.

  14. 47

    I wrote a comment about my Trilogy in Judge Nominee: Evan Wallach. Now I will get someone to write my Book with me. For those that are Pro Patent, I am so sorry for you. You have sat by and let this happen to America. And you .. most of you licensed are first of all Lawyers or defenders. Shame on the congress for inviting their Families in while they are sworn in. Into what…the United Union of America.

  15. 46

    “To drive attorney fees upward.
    And hear the lamentation of their clients.”

    Funny that … the patent attorneys get rich, and the clients get screwed. That is why, 6, although we detest you thoroughly, we acknowledge that you and your bretheren at the USPTO have put a lot of money in our pockets.

  16. 45


    Might it be possible for you to get the results of your survey about the possible effects of the proposed patent reform to the leadership in the Senate and the President before the Senate votes on the House version of the bill? Since the cloture vote in the Senate will need to be a 3 fifths majority to avoid any serious debate on the merits of the proposed legislation, it would seem to be a bit important to let them know what IP professionals and actual inventors think about the possible repercussions of the proposed legislation.

    Also, as a member of the National Small Business Association (NSBA) for several years, I thought it might be a good thing for somebody to attend the NSBA panel discussion on August 29th in Washington DC, which will feature some very notable speakers like Chief Judge Paul Michel and Hank Nothhaft and Ron Katznelson, who has been tireless in trying to analyze How Bad some of the recent patent reform efforts could possibly be. It is free to attend, but you might want to register early to be assured of getting a seat. link to

    I wish I could be there, but I live on the Left coast Washington, which is very far away, and I am very busy these days..

    Best regards,

  17. 44

    Your statements show a great deal of ignorance about the history of technological developments in relation to patents. The initial disclosure of foundational patents most often predates the appearance of the disclosed technology in commercial products by many years if not decades (if it ever leaves R&D at all). There are still many patented ideas originally disclosed in the 1960’s and 1970’s that are just beginning to show up in modern products such as phase change memory and some examples of flat panel display technology.

    Tracking both foundational patents and incremental patents which build on the foundational patents can be a great tool to see where technology is going and how competitors are investing in R&D.

  18. 43

    To Shilling-

    The fact that that they have very large amounts of revenue to make Independents and small innovative businesses just go away in the future and not compete with them is very sad indeed. How quickly they forget where their particular business models cane from originally. Now that they have arrived at their particlar Island, they seem to have decided that the Island is full, and nobody else should be allowed to move onto *their* Island. That attitude seems to be very selfish and greedy in the greater scheme of things in my opinion. Most times it might affect their profits by less than 2%, which means they can spend tens of millions buying Senators and Representatives in the House, and still be able make big points with the CFO of their corporation by spending a few miilion bucks to lobby for this horrendous version of *Patent Reform* Color me a bit jaded about the lack of *intelligence* demonstrated by our duly elected lawmakers. Can you spell re-election campaign funding? There you go, I knew you could, and it will be a wonderful day in the Neighborhood after they *fix* US patent law to make it easier for others abroad to steal or invalidate ostensibly valid US patents. Won’t they be So Surprised when the US economy falls further into decline, and Patent Attorneys and Agents are standing by the side of the road with cardboard signs seeking food or shelter or a job.

  19. 42

    To the Shilling shall continue. I know exactly what you are describing. Paranoia is not just a state of mind. It can also be because of Facts.
    And I believe valuable information for the Patent applicant is information that will protect them. information that will explain how you can file in multiple Countries at the same time if you feel you have a winner. If I knew then what I know now… I challenge a Patent professional to write a Book on this. It would stop the Hanky Panky immediately I would say.
    If the Game don’t fit change the RULES!

  20. 40

    They, like some posters on this forum, can lie with impunity and suffer no consequences.

    Compare to

    We can be blatantly dishonest all we want

    Yes Virgina, this was said by the same two-faced person.

  21. 39

    The perfecting of the system would make the least possible circumstances where lies could impact decisions and where expensive litigations could not occur such as my proposales here and throughout these blog pages.This is one reason swearing behind needs elimination except in the instance of cluster proving to show that all the persons involved on the opposing sides are liars and new patents must be reissued in quanity like 10000. The same with the resulting previous art files that are being run back in time and altered to cheat the true conciever.Whenever money is involved corruption will occur if it can occur.

  22. 38

    Michael, I think the courts already have the power to do that through sanctions and other remedies.

    The problem is that the PTO does not have the power.  We learned in a recent case involving a patent owner name Lockwood that he is without a remedy if a law firm lies in a re-examination request.  The patent owner may have to spend hundreds of thousands of dollars to clear his patent, but then would have no remedy against a liar.

    Patent practitioners have a duty of honesty and candor before the patent office.  This is enforced against a patent owner by holding his patent unenforceable.  But there are no clear remedies against a member the public, especially one who is acting anonymously.  They,
    like some posters on this forum, can lie with impunity and suffer no consequences.

  23. 37

    We need standardized predictable procedures to reduce unnessary litigation previously issued opinions need reviev to establish normalcy

  24. 36

    Good point there about complexity.

    I think it still has a lot to do with vagueness of claims, which has been a well-known phenomena at least in the United States patent from the beginning of their use.

    But even though the problem has existed for 170 years, and even though the Supreme Court has done its best to require that claims be clear, they are not.

    There is a war between patent practitioners like to claim functionally, and the courts who seem to have no consistent basis or theory for ending functional claiming. After all, practitioners faced with Halliburton, overturned that case through legislation.

    The war continues.

  25. 35

    Dont forget the less than 1/2% are the valuaable and important for human advancement ones so there fought over and if indegents are involved we need uspto assistance or the incentive to create is destroyed and big business dominates.

  26. 34

    Do Patents Disclose Useful Information? Yes.

    1) As Stan Delo described above. Happens often.

    2) I look at the patents marked on interesting products I come across.
    I prefer that the full (true) patent history of the product be on it.
    So, I like that expired patents are on the product. (Determining expiration is trivial.)

    3) Inspiration 1: Review major historical patents.

    4) Inspiration 2: Review patents by the greats and see that they are morals too. And often wrong about why it works or the scientific theory behind it. And how “primitive/marginal” it was, compared with our hindsight understanding.

    5) The strange/wacky. The solution is 100% useless/worthless/humorous. But hidden within is a smallest hint about a new understanding of a problem. Intuition later re-frames the problem. Once re-framed, the solution is easy.

    6) For insights into the larger creative process.

    7) As recognition (an incentive).

    … more but out of time.

  27. 33

    No that was proposed by me in 1960 I think secrecy files I designed to give startups a fighting chance to gather investment and fight pirating. I dident realize this creates another method of fraud potential by uspto interoffice corrupt file insertions 18 months plus. There system needs elimination or tech security improvement into the21 century.

  28. 32

    Weve got the bandit chineese and other countries to get in line first with there defective system also remember my plan of immediate novelty check allowing immediate issue.The only other thing needed is invention clusters consideration in espenioge cases and consideration for indegency in not being able to file also lack of inventor security needs correcting to perfect the system. this means no cash sales for 1 year royalty payments only and required stable reinvestment of sale funds to insure ability to reverse deals as nessary

  29. 31

    This is where we need sanctions and triple damages against big money in the instannce of extensive or unnessary complexity of litigation where little guys are involved. Also the return of uspto filers funds from the general fund should pay indegents attorneys inventor security and filing fees in marketable inventions.

  30. 30

    If the new design could not have existed without the previously patented this would determine dependancy (derived from) and the new product should be denied because it is in competition with or reducing the revenues of the original patented product. I dident say it should be denied totaly just required lisencing under the parent invention then on the experation of the original patent a patent should be granted for obloseteing improvements of the old product. Im afraid you dident do such a great job setting this up in 1830 George if thats you.

  31. 28

    The speculation that patents don’t disclose useful technical information seems a bit absurd to me, and seems to suggest that the author is purely an academic that has never invented anything and had to invest the time and money to turn an idea into a practical invention. While developing several different ways to do a task better, it became obvious to me at least that I needed to do an extensive patent search to make sure that I wasn’t wasting my time re-inventing somebody else’s wheel, let alone spending money building it and preparing and filing a patent application only to discover that getting a patent allowed with claims of any value would not be possible. Oddly enough, I discovered that the search itself caused me to *invent* about 6 or 8 more things by taking parts of several different patents and combining them with some ideas of my own to create much better concepts that will have to be turned into inventions after a significant amount of sweat equity and of course a bit of spare change that I might happen to have laying around with nowhere else to spend it.

    I must confess I haven’t read the article yet though, so perhaps my comment is a bit premature, and I might whistle a different tune after having read it. Is it just my paranoid imagination, or do some academics seem to be predisposed to questioning the inherent value of patents towards advancing the arts and sciences?

  32. 27

    I find the title artless. The question might be better framed as “How much useful information do patents disclose?” Only an ignoramus would claim that they disclose none.

    In my former life, a Chem Abstracts search on one type of abiotic synthesis revealed only a citation to a patent. My boss dismissed it, but I ordered a copy. It eventually arrived, disclosing *everything* he had already sought funding for. The inventor had died, so I suppose his widow turned his lab notebooks over to a patent attorney. Total waste of money from her standpoint, but…

    Those who think 18 mos. is a long lag time must not publish in refereed journals. SSRN is fast, but law reviews can take nearly as long. And what of books?!

  33. 26

    I just wrote about the two signed Applications belonging to the first one. The first one I never signed or Notarized. I sent it back. And the second ( ONE MONTH LATER) I was told to sign,and not date, and it to was not notarized… and all of a sudden when I went back to read it before I hit send… WOW what happened to what I wrote? Must be a Hacker in my space.

  34. 25

    Many countries offer “utility model” patents that have exactly this property. A useful tool is to have the utility model out there for immediate enforcement while the mother ship examined patent lumbers along in the background. You can use information gleaned from enforcing the utility model against a competitor to amend claims in the examined patent to avoid prior art raised in the utility model litigation or to more accurately cover the competitor. This effectively gives you two bites at the apple.

  35. 24

    “Loser pays” has some advantages but it also presupposes you can easily figure out the loser. In any litigation, there are many counts. For instance you may find non-infringement of method claims but infringement of system claims. Or non-infringement of one patent but not another. As Ned Heller points out, it is potentially unfair to small companies.

  36. 23

    The 18 month delay arose because that’s what the rest of the world seemed to do and we figured if they’re all doing it, we should try to fit in. Why the rest of the world chose to do this is a mystery to me for the reasons set forth so concisely by “when I was young”, namely “why buy the cow when you can get the milk for free”.

  37. 22

    Finding a fair way for David to fight Goliath in court is a challenge. Complexity favours Goliath. Your system at 7:42pm Ned seems to me to favour Goliath.

    Suppose little David is just getting started, and Goliath then says that David is infringing a whole load of his duly issued claims. Conversely, suppose Goliath is suddenly inspired to launch a spoiler product at half the price, which David happens to think infringes his little patent portfolio. Both come out of it just fine, with ample financial backing, with or without a “loser pays” rule, if the legal rules of the claim construction and obviousness games are simple enough for investors to discern the likely outcome, on each of the asserted claims.

    But they aren’t, are they Ned? In the USA, patent litigation is a lottery, isn’t it?

    Some people like betting in lotteries. But are they the people who should be writing the rules?

  38. 21

    Loser pays?

    Consider the consequences.  A small company with an excellent patent sues a major company.  The major company puts on a full court defense and eventually wins because the small company has been forced into bankruptcy not only because of litigation costs but because of the piracy of the major company.

    Should the small company pay the major company's litigation costs?

    You think this is ridiculous, think of the i4i versus Microsoft case.

    I think the way we have it right now is just about right where one has to prove that the plaintiff had no case before the plaintiff has to pay the litigation cost of the defendant.

    The bottom line is this, I don't
    think the European system regarding attorneys fees is fair except among financially equal litigants.

  39. 20

    The term used was “design around”, not “patent around”… (one may design around the claims of a patent but not seek to apply for a patent on the result) but if the design around itself meets the the patentability requirements (e.g., non-obvious), why should it be denied?

  40. 18

    As we rethink the system, some ideas: 

    1) Registration with "deferred examination" (via reissue, opposition and reexamination), no presumption of validity, no possibility of willful infringement until examined; and no continuations or divisions (except from reissues);
    2) Immediate publication;
    3) Immediate enforceability;
    4) Broadening reissues may be filed within two years; reissues given full examination, and may have restrictions, RCEs and continuations and divisionals just as now;
    5) A one time opposition, initiated within 6 months of actual notice, only by one who has been given notice of infringement; other parties may join later if justice may require.
    6) Patents that have been opposed are entitled, at the completion of opposition, to damages without actual notice for direct infringement.
    7) Once a patent has been examined or has been subject to an opposition; it is presumed valid, and willful infringement may apply; and

    8) Inter partes and ex parte reexaminations at any time after an opposition.  An opposition is required before any other form of reexamination may be initiated.

    This system would operate like the current system but, I think, most applications would never be examined because they would be enforceable without examination.  The could optionally be examined ex parte through the reissue procedure.

    If the patent owner began to assert the patent, this would open the patent to an opposition.  Other forms of reexamination would have to wait the completion of an opposition. 

    Until a patent has been examined, it will not be presumed valid and there will be no willful infringement.  However, if a patent emerges from an opposition, damages will apply without regard to prior notice for direct infringement.

    Like it?

  41. 17

    Some of the comments made on the Aug 09, 2011 Patently-O note by Jason Rantanen on the publication “Peripheral Disclosure” are also applicable this this reviewed article “Do Patents Disclose Useful Information?” by Lisa Larrimore Ouellette.

  42. 16

    One step better: we then simply save the Office Billions (yes with a B) by merely registering the applications, and only those few that are litigated anyway (less then 1/2 of 1 %) need even expend any additional resources in establishing validity, and that expense picked up by the involved parties.

  43. 15

    Patenting arround should be disallowed alltogether its a severe disincentive to create in the first place. I say call it subinvention and make it a dependant of the the original if its significantly better than the original to the point of obsoliting the original then grant it as dependant and require lisencing on the old patent until it expires then grant a full patent.

  44. 14

    patents filed by corperations should be required to disclose all technical information they have the resources and expertice in previous art. New independant concievers should be held to a lower standard in this respect and also the requirements for granting the patent novelty and marketable product conception should be the requirement not quality as kapos wants. They need to establish an inactive status for patents when inventors are unable to attract investment such as this recession and or conspericies to exclude by large corperations.

  45. 13

    Consider a technology like catheters for delivering a stent. Very competitive. Wonderfully creative design arounds. Very litigious. In fact, a superb advert for the value of a properly functioning patent system. Fail to track the emerging patent applications of your competitors and you might lose your shirt.

    So, you watch the emerging WO publications in that technology.

    1. they reveal what the competitor has in its pipeline

    2. they are the earliest sighting you will get, of this emerging technology

    3. the drawings reveal their secrets at a glance

    4. they are easy to pull out of the all-technology stream of WO publications.

    I’m not saying that the emerging stream of WO docs is as useful in, say, R&D in the field of methods of doing business.

    Now I’ll download and read the Paper.

  46. 12

    So, based on one rather small portion of the patent system where you actually have to give “useful information” for your invention to be enabled, we conclude that the patent system as a whole discloses useful information?

    Why doesn’t she take her search for empirical evidence to the arts where everyone ACTUALLY ARGUES PATENTS DO NOT DISCLOSE JACK SQUAT much less “useful information”.

  47. 11

    Conan the Examiner, what is best in life?

    To construe claims the way I want using BRI;

    To drive patent attorneys to tears; and

    To hear the lamentations of the clients.

  48. 10

    Old-Timer, why don’t we not only published patent applications on filing, but allow them to be immediately enforceable, however, with no presumption of validity.

  49. 9

    Once upon a time there was a true Quid Pro Quo that enabled an inventor to graciously accept a pronouncement that he was not going to get a patent, abandon his application, and attempt to continue his business in the trade secret route.

    Once upon a time therea was a true Quid Pro Quo that put some onus on the patent office to perform a timely and effective examination.

    Now with conscripted publication, the horrendous delay to any action, let alone a first action within 18 months (the reason for the A Guarantee time frame is an attempt at preserving the applicant’s ability to expressly abandon), the Office has simply lost the will to examine promptly and effectively.

    Why buy the cow when you can get the milk for free?

  50. 8

    Bad legal Information..? Obviously I have to Applications in waiting..for correction ,and I do declare correction! I even met one in person along with my husband.. I wonder which will be viewed as worse.The one I met as a Lawyer.. or the one that claimed he was my Lawyer?
    Faux pas I doubt it!

  51. 6

    What is best in life?

    To reject patent applications.
    To drive attorney fees upward.
    And hear the lamentation of their clients.

  52. 5

    Is her title a question, in which case it perhaps should have a question mark, or is it an emphatic statement?

  53. 4

    Good point. Though the argument re: obtaining a patent is quid pro quo for disclosure pre-dates the rule requiring publication of patent applications in the US….

    But, as you say, if applications were immediately published, then the information would not be so stale.

    I wonder what the rationale was for the 18-month delay…

  54. 3

    “Ouellete argues that we do not grant patents because of disclosure; rather, we require disclosure because we grant patents.”

    So what?

    I guess I’d have to read the article to find that out, but this teaser just hasn’t done it for me.

  55. 2

    Given the pace of technological development in the modern world, I would think that the information contained in the patent literature would be considered somewhat stale and uninteresting to someone trying to develop new products, or to stay abreast of technological developments.

    Certainly this is true in the vast majority of cases by the time a patent expires. What a patent teaches can now be used, but mostly what it teaches is well-known and potentially obsolete.

    The problem of obsolescence could be reduced if patent applications were published immediately upon filing. But I suspect that most stakeholders would object to this.

  56. 1

    And the published applications/patents are classified under numerous categories, making research easier.

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