The Null Patent

ABSTRACT Failure is the basis of much of scientific progress because it plays a key role in building knowledge. In fact, negative results compose the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information--whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative results can play in determining patentability has heretofore been overlooked. This Article addresses these issues by proposing a new medium of disclosure called the null patent. Whereas null patents would lack claims and therefore not confer a right to exclude, they would strongly resemble other patent documents in substantive technical content and bibliographic information--thus making them amenable to technology-based classification, indexing, and open-access searching. This new medium of disclosure has potentially transformative implications for both patent law and science. Providing the Patent Office with ready access to a vast body of technical information would lead to a more thorough examination and, as a consequence, improve patent quality. Providing inventors with access to this information would allow them to gauge patentability ex ante with greater certainty. And because the null patent repository would be freely accessible, it would serve the public good by enriching the public storehouse of knowledge. Finally, null patents would promote broader policy goals shared by both science and patent law--namely, to promote technological progress through the dissemination of knowledge, to coordinate the future development of technology, and to spur innovation. TABLE OF CONTENTS INTRODUCTION I. UNDERSTANDING EXPERIMENTAL FAILURE A. The Ubiquity of Failure in Science B. The File Drawer Problem 1. Why It Exists 2. Consequences a. For Science b. For Patent Law II. HARVESTING SQUANDERED KNOWLEDGE A. Why a Patent-Like Document? 1. Risky Alternatives 2. The Well-Established Framework of Patent Information 3. The Need to Mitigate the PTO's Information Deficit B. Incentivizing Disclosure 1. The Challenge 2. A Straightforward Scheme for Knowledge Capture 3. Quid Pro Quo Incentives 4. The Special Case of Federally Funded Research 5. An Exceptional Tool for Defensive Publication III. USING THE LIBERATED KNOWLEDGE A. The (Often Overlooked) Role of Failure in Patent Law 1. Novelty: A Patent-Obtaining Role a. The Basic Test b. Experimental Failure and Indirect Enrichment of the Public Domain 2. Nonobviousness: A (Predominantly) Patent-Defeating Role a. The Nonobviousness Standard b. Experimental Failure: Indirect Protection of the Public Domain 3. Enablement: A Patent-Obtaining or Patent-Defeating Role a. Statutory Enablement b. Failed Experiments and the Public Storehouse of Knowledge B. Benefits of the Proposal 1. It Will Improve Patent Quality 2. It Will Promote Broader Policy Goals of Science and Patent Law C. Potential Objections and Implementation Concerns 1. Technical Junk and Nuisance Prior Art 2. Administrative Burden CONCLUSION INTRODUCTION A fundamental goal of the patent system is to encourage the dissemination of technical knowledge. (1) As soon as a patent document publishes, (2) there is hope that the public will use the technical details disclosed therein to improve upon the invention, to design around it, or to engage in other innovative activities. (3) Although the patentee maintains the right to exclude others from practicing the invention until the patent term expires, the technical information disclosed in the patent document has potential immediate value to the public, which can use the information for any purpose that does not infringe upon the claims. …