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All of this strongly argues for reform. Banning fictional experiments in patents is an attractive solution, given the findings herein, but likely too drastic an institutional change (for now). Instead, I argue that we should not think about fictional experiments as prophecies – a name that carries of ring of accuracy and infallibility – but rather as hypotheses – testable predictions that may or may not turn out to be correct. 41 The shift from prophecies to hypotheses has several practical implications. First, it would reverse the current legal presumption that prophetic examples are enabled (i.e. that they work as written), since, as I show empirically, there is simply no reason to assume accuracy. Second, we should give inventors a grace period after filing to test their hypotheses and update prophetic examples with real results. Finally, we should require prophetic examples to be clearly labeled and to include some explanation about why the inventor expects the experiment to work. These changes all reflect that the predicted results are possibilities, not inevitabilities, and the shift can preserve what value such speculation has, while mitigating the clear harms that now prevail.

Patent applications with prophetic examples can be filed earlier than applications with working examples because writing a prophetic example is faster than conducting even the simplest of real experiments.119 Moreover, real experiments might not work or might produce unexpected data, necessitating a potentially time-consuming change to protocols or development of a new procedure. Prophetic examples do not have this potential. Thus, applicants who choose prophetic examples will be able to file a patent application earlier than applicants who choose to conduct experiments, a particular advantage in competitive and fast-moving fields.120

Prophetic examples also help applicants obtain broader patents. Patents must teach others how to make and use their inventions, and a broader patents covering more material require more teaching. To get a patent on one molecule, one experimental protocol is generally enough to teach how to synthesize the molecule.121 To get a patent on many different molecules, many synthesis protocols will be needed. Thus, patent drafters will try to include more examples to support broader claims.122 Prophetic examples are instrumental to this function.123 Prophetic examples also allow applicants to seek a broad patent without conducting expensive experiments, which reduces the cost of patents.

The United States Patent and Trademark Office (USPTO) publishes a large number of notices in addition to guidelines for patent applicants. These guidelines are frequently updated, and it is critical to stay informed of those updates. On July 1, 2021, the USPTO published a notice in the Federal Register titled “Properly Presenting Prophetic and Working Examples in a Patent Publication.” In this notice, the USPTO defined prophetic and working examples, distinguished these concepts, and described their use and importance within patent applications. In contrast, this distinction is not made under Indian or Chinese law or practice. Furthermore, applicants are generally not required to provide prophetic or working examples, and the concept of prophetic examples is not recognized under Indian or Chinese patent law.

For a U.S. patent application to be considered complete, it must include a written description of the invention and an example of the invention’s use. The exception would be a case where it is straightforward for someone in a field relevant to the patent to make and use the invention. Any required example may be either prophetic or working. A prophetic example, also known as a paper example, does not require proven results. It has been laid out entirely on paper but has not yet been tested. These examples would describe the expected results, but experimentation to achieve those expected results has not been performed. On the other hand, working examples are based upon experimentation, in which the results were successful. To clarify, we will symbolize the contrast in these examples using a cake. If an inventor has baked the cake and has it ready on a plate, a description of this would be considered a working example. If the inventor has written a recipe for that specific cake with detailed steps, but the cake has never been made, this would be a prophetic example. In general, blueprints, plans, and drawings are often equated with prophetic examples, while descriptions of man-made biotech and chemical compounds, working prototypes, completed projects, and tested software would be considered working examples.

The current MPEP (9th Edition, Rev. 07.2022), published February 2023, is up-to-date as of July 31, 2022. Any changes to USPTO patent examining policies and procedures that occurred after July 31, 2022, have not been incorporated into the current MPEP.

The specifications in the drawings for the mini-piles stated that the capacity for the mini-piles was "to be" 6,000 or 8,000 pounds and that the length of the mini-piles was "to be" adequate to get into undisturbed soil to a depth adequate for obtaining the required capacity. The specifications in the project manual stated that the mini-piles "should" have a capacity of 4 tons and 3 tons, that the mini-piles "should" be driven to minimum depth of 25 feet, and that a grout bulb "should" be formed at the base of a mini-pile. Kenneth Winters, an expert in structural engineering, and Richard Anderson, an expert in geotechnical engineering, agreed with Steve Maranowski, plaintiff's president, that the specifications in the project manual, because those specifications used the word "should," were permissive and suggestions of what plaintiff could do to achieve the required capacity. However, the trial court, when it instructed the jury on how to interpret the contract, instructed the jury that it was to interpret the words of the contract by giving them their ordinary and common meaning. An ordinary and common meaning of the word "should" is that it denotes a mandatory obligation. See People v Fosnaugh, 248 Mich App 444, 455; 639 NW2d 587 (2001) (stating that "the word 'should' can, in certain contexts, connote an obligatory effect"); Merriam-Webster's College Dictionary (11th ed) (defining "should," in pertinent part, as "used in auxiliary function to express obligation, propriety, or expediency"). Accordingly, viewing the evidence in a light most favorable to defendant, reasonable jurors could have honestly reached different conclusions on whether the specifications in the project manual were mandatory and, because Maranowski admitted that plaintiff did not use grout bulbs and did not drive all the mini-piles at least 25 feet into the ground, whether plaintiff breached the contract. Morinelli, 242 Mich App at 260-261.

4 The legal question to be resolved by the court is whether the word "should"  in the May 18 order connotes futurity or may be deemed a ruling in praesenti. The answer to this query is not to be divined from rules of grammar; it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.

Footnote 13:

4 The legal question to be resolved by the court is whether the word "should"  in the May 18 order connotes futurity or may be deemed a ruling in praesenti. The answer to this query is not to be divined from rules of grammar; it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.

Footnote 13:

b. Immediacy --- the plan is done after prophetic examples are taken down

The Manual of Patent Examining Procedure or MPEP is published to provide U.S. Patent and Trademark Office (USPTO) patent examiners, applicants, attorneys, agents, and representatives of applicants with a reference work on the practices and procedures relative to the prosecution of patent applications before the USPTO. It contains instructions to examiners, as well as other material in the nature of information and interpretation, and outlines the current procedures which the examiners are required or authorized to follow in appropriate cases in the normal examination of a patent application.

The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks. In doing this, the USPTO fulfills the mandate of Article I, Section 8, Clause 8, of the Constitution that the legislative branch "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The USPTO registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3). Under this system of protection, American industry has flourished. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs. The USPTO is at the cutting edge of the nation's technological progress and achievement.

The USPTO advises the president of the United States, the secretary of commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement; and promotes the stronger and more effective IP protection around the world. The USPTO furthers effective IP protection for U.S. innovators and entrepreneurs worldwide by working with other agencies to secure strong IP provisions in free trade and other international agreements. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners.

The Manual of Patent Examining Procedure or MPEP is published to provide U.S. Patent and Trademark Office (USPTO) patent examiners, applicants, attorneys, agents, and representatives of applicants with a reference work on the practices and procedures relative to the prosecution of patent applications before the USPTO. It contains instructions to examiners, as well as other material in the nature of information and interpretation, and outlines the current procedures which the examiners are required or authorized to follow in appropriate cases in the normal examination of a patent application.

The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks. In doing this, the USPTO fulfills the mandate of Article I, Section 8, Clause 8, of the Constitution that the legislative branch "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The USPTO registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3). Under this system of protection, American industry has flourished. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs. The USPTO is at the cutting edge of the nation's technological progress and achievement.

The USPTO advises the president of the United States, the secretary of commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement; and promotes the stronger and more effective IP protection around the world. The USPTO furthers effective IP protection for U.S. innovators and entrepreneurs worldwide by working with other agencies to secure strong IP provisions in free trade and other international agreements. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners.

Labeling prophetic examples only by verb tense creates the risk of confusion. Freilich (2019) documents empirical evidence that the potential costs of prophetic examples are quite large. The obvious concern that arises with prophetic examples is that people either cannot or do not distinguish between prophetic examples and working examples in practice. As noted above, the two types of examples can be distinguished in theory, because USPTO policy requires working examples to be written in past tense, whereas prophetic examples are generally written in either present or future tense. Despite this distinction, Freilich (2019) documents that prophetic examples are most often cited as if they were in fact real working examples: of 100 randomly selected patents that use only prophetic examples and that are cited in a scientific publication for a specific proposition, 99 are cited in a way that—incorrectly—treats the prophetic example as a real example, such as by saying that an experiment “had been carried out” by authors of the cited patent. Freilich and Ouellette (2019) also point out that lack of knowledge about the verb tense rule that distinguishes types of examples is made worse in cases where patents are translated for filing in international patent offices, since differences in tenses in English-language patents may quite literally be lost in translation. With these translated versions, patent examiners and scientists in other countries may be unable to distinguish real and hypothetical data. Flagging prophetic examples only through verb tense may also confuse other audiences that are unfamiliar with this subtlety of U.S. patent law, such as investors who use patents to better understand a firm’s technology, or even scholars of the patent system. In contrast with these social costs, there is no legal benefit to patentees from labeling their predictions only by verb tense (Freilich and Ouellette 2019). Inventors who want to file patents on untested inventions can do so without presenting their predictions in the form of fictitious experiments— they can also obtain a patent with more general discussion about contexts in which the invention is expected to work (e.g., “Based on these animal trial results, this compound is expected to reduce the mass of pancreatic cancer tumors in adult humans”). Taken together, we think there is a straightforward case for requiring that prophetic examples be more clearly delineated as such. The only benefit for patentees that would be lost through this change is any benefit that comes from misleading investors and other patent readers, which is not a net benefit from society’s perspective. Clearer labeling would reduce the costs that stem from confusion, enhancing the patent system’s goals of inducing researchers to disclose accurate information about new inventions and reducing duplication of inventor effort.

Among the many leniencies that are offered to applicants is the ability to support claims through the use of prophetic examples—experiments that were never conducted—in the patent specification.65 Recently, the USPTO adopted much-needed rules requiring applicants to more clearly identify prophetic versus actual experiments.66 This measure was adopted, in part, at the urging of Senator Thom Tillis, who based his recommendation on recent work by Professors Lisa Ouellette and Heidi Williams.67 For obvious reasons, clarifying that experiments described in a patent specification were not actually conducted is important. Yet this clarification does not itself eliminate the fundamental problem caused by the use of prophetic examples. As Ouellette and Williams note, their proposed clarification does not address the larger question “whether patents on completely untested inventions should be allowed.”68 The time to answer that question is now.

Because of concerns about awarding patents to unproven inventions, prophetic examples are viewed with greater skepticism in Europe (8), Canada (9), Japan (10), and China (11). However, because patents with the same contents are often filed in multiple regions, prophetic examples originating in U.S. applications will often be present in applications filed in other jurisdictions. Further, because patent offices and examiners in those countries commonly read and cite patents from other jurisdictions, countries skeptical of prophetic examples still feel their effects.

Should prophetic examples be permitted at all? In addition to requiring clearer labeling for prophetic examples, we think patent policymakers should start a longer-term discussion about whether it makes sense for patents to be granted based purely on prophetic examples to the extent currently allowed. In principle, prophetic examples could generate social benefits. For example, prophetic examples could allow firms to file patent applications earlier in their research processes before they have had time to complete actual experiments. Although this might be socially beneficial, it is equally straightforward to construct cases in which early patenting is socially harmful. For example, allowing patents on untested inventions may discourage researchers from doing the work needed to implement an invention in practice (Lemley 2016; Ouellette 2016). Freilich (2019) finds little evidence that patents with more prophetic examples have clear benefits for patentees; rather, they appear to be more narrow, less valuable, less likely to be used by small firms, and more likely to be abandoned. And Freilich and Ouellette (2019) note that prophetic examples are viewed more skeptically by other patent offices, including those in Canada, China, Europe, and Japan. Understanding how prophetic examples affect innovation is an important question for further study. But, in any case, if prophetic examples are retained in the future, policymakers should at least require that they be clearly flagged and distinguished from working examples.

BEIJING, Dec 30 (Reuters) - A sweeping purge of Chinese generals has weakened the People's Liberation Army, exposing deep-rooted corruption that could take more time to fix and slow Chinese leader Xi Jinping's military modernization drive amid geopolitical tensions, analysts say.

China's top lawmakers ousted nine, opens new tab senior military officers from the national legislative body on Friday, state media reported, a step that typically precedes further punishment for wayward cadres. Many of these were from the Rocket Force - a key arm of the PLA overseeing tactical and nuclear missiles.

For over a decade, U.S. policymakers and scholars have cast China’s rise as a threat to the liberal international order (LIO). The LIO has been credited with achieving the Cold War peace, U.S. victory in the Cold War, and the absence of balancing against U.S. hegemonic power following the dissolution of the Soviet Union. Consequently, a threat to the LIO could have dire implications for the U.S. security. Careful examination, however, shows that framing U.S. security in terms of the LIO creates more confusion than insight and risks misguiding U.S. foreign policy.

What is the Liberal International Order (LIO)? An international order is widely understood by scholars as the institutions and rules that guide the states that belong to the order. Among the LIO’s key institutions are NATO and the U.S.-Japan alliance, the open international trading system—including the World Trade Organization—and the United Nations. Since the end of the Cold War, LIO terminology has at times been used to cover a broader set of components, including the norm to promote and defend democracy, obligations to adopt plans to reduce climate change, the nuclear nonproliferation regime, and the United Nations Convention on the Law of the Sea (UNCLOS). The many different uses of LIO terminology are a significant source of confusion, however deeper problems lie elsewhere.

The great-power competition between the United States and China is a defining feature of the first part of this century, but there’s little agreement on how it should be characterized. Some call it an ‘enduring rivalry’ analogous to the one between Germany and Britain prior to the last century’s two world wars. Others worry that America is like Sparta (the dominant power) and China is like Athens (the rising power) in the 5th century BC: the two are ‘destined for war’. The problem, of course, is that a belief in the inevitability of conflict can become a self-fulfilling prophecy.

‘Enduring rivalry’ itself is a misleading term. Just think of all the phases the Sino-American relationship has gone through since the Chinese Communist Party came to power in 1949. In the 1950s, American and Chinese soldiers were killing each other on the Korean peninsula. In the 1970s, after US President Richard Nixon’s historic visit to China, the two countries cooperated closely to counterbalance the Soviet Union. In the 1990s, economic engagement increased, and the US supported China’s entry into the World Trade Organization. Not until after 2016 did we enter the current phase of great-power competition, with one US official describing China as a ‘pacing threat’—meaning ‘the only country that can pose a systemic challenge’ to America ‘economically, technologically, politically and militarily.’

I test this hypothesis empirically and find there is surprisingly little evidence that prophetic examples actually help patentees. Patents with more prophetic examples are narrower than patents with fewer prophetic examples – despite the prediction that prophetic examples help patentees get broader patents.26 Second, there is no evidence that patents with more prophetic examples are filed earlier than those with fewer prophetic examples – again, contrary to prediction.27 Finally, although small companies should benefit disproportionately from the ability to use prophetic examples, they do not. I find that small companies are significantly less likely to use prophetic examples as compared to their larger counterparts.28 In sum, the case for prophetic examples does not fit with the empirical evidence. Evidence for the benefits of prophetic examples is weak; but evidence for their harms is much stronger. Patents with prophetic examples are frequently abandoned, which suggests that the inventor is not commercializing their invention. 29 The problem is that, because of the patent, neither is anybody else. While in force, the patent prevents others from working in that area.30 Even after the patent has been abandoned and no longer has legal force, a chilling effect remains. Because patents are granted only if an invention has not been previously disclosed, it is difficult for any subsequent inventor to get a patent in an area previously described by a prophetic example.31 This is true even if the prophetic example is incorrect and the subsequent inventor was the first to actually make a functioning prototype.32 Essentially, instead of incentivizing innovation, prophetic examples may create an innovation dead zone.