Prophetic patents

A patent is the right granted to an inventor to exclude others from commercially exploiting an invention for a limited period in a given region/country, in return for the disclosure of the invention, so that others may gain the benefit of the invention.

To be eligible for patent protection, an invention must meet several criteria:

  • It must show an element of novelty. (Be unknown in the body of existing knowledge –prior art–)
  • it must exhibit a sufficient “inventive step” (Be non-obvious to a person having ordinary skill in the relevant technical field)
  • It must be industrially applicable (useful)
  • It must consist of patentable subject matter (according to specific country laws)
  • The disclosure of the invention in the patent application must meet certain standards.

Does the invention need to exist? No, it doesn’t. (At least, in some jurisdictions.)

No results should be represented as actual results unless they have actually been achieved. Paper examples should not be described using the past tense.

For example: U.S. Pat. No. 4,666,425, Device for perfusing an animal head (a.k.a. brain in a vat). xD.

Does this make sense? Well, that’s a tricky question (like most things related to patents and intellectual property in general). A commentary in Science Insights provides a brief analysis, and argue that just because some patents are not based on actual results does not mean they need o be confusing:

Although it may surprise scientists, one can receive a patent in many jurisdictions without implementing an invention in practice and demonstrating that it works as expected. Instead, inventors applying for patents are allowed to include predicted experimental methods and results, known as prophetic examples, as long as the examples are not written in the past tense. Allowing untested inventions to be patented may encourage earlier disclosures about new ideas and provide earlier certainty regarding legal rights—which may help small firms acquire financing to bring their ideas to market. Yet granting patents too early may also discourage researchers from doing the work to bring ideas to fruition. Even if allowing untested inventions to be patented is desirable, we think prophetic examples deserve closer scrutiny, and clearer labeling, because of the likelihood that they are unnecessarily confusing—particularly to scientists, many of whom read patents but are unlikely to appreciate that not all the claims are based on actual data.

Freilich, Janet, and Lisa Larrimore Ouellette. ‘Science Fiction: Fictitious Experiments in Patents’. Science, vol. 364, no. 6445, June 2019, pp. 1036–37. science.sciencemag.org, doi:10.1126/science.aax0748.

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Featured Image: An illustration to ‘Professor Dowell’s Head, a novella about a mad scientist reviving a disembodied head. Wikimedia Commons, via Smithsonian.com

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