Prophetic examples mislead, disincentivize physical ev, furthers the gap between scientific writing and patents – this causes more harm to small businesses

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.

Prophetic examples also lead to a second type of harm: they mislead scientists. In their patent, inventors must disclose a detailed description of their invention that can be used by other scientists to build further upon the technology.33 This disclosure function of patents has long been recognized as a crucial element of innovation – allowing downstream innovators to see further by metaphorically standing on the shoulders of giants.34 However, the disclosure function breaks down if scientists are misled by the disclosed information. I analyzed how prophetic examples were cited in scientific publications and found that ninety-nine percent of citations to prophetic examples incorrectly cited the example as if it represented work that had actually been done.35 This would not necessarily be a problem if the prophetic examples were good predictions, but, as I demonstrate in this Article, many prophetic examples are probably wrong.36 False information is infiltrating the scientific community by way of prophetic examples. My empirical findings have implications for several core debates in patent theory, including the disclosure function of patents, theories about constructive reduction to practice, and the optimal timing of patent filing. For disclosure, the misinformation spread by prophetic examples adds strength to widespread accusations that disclosure functions poorly and furthers a line of the literature emphasizing the gap between scientific writing and “patentese.”37 For constructive reduction to practice – a doctrine that allows inventors to obtain a patent without having physically created the invention – scholars argue that it disincentivizes physical reduction to practice. 38 However, my evidence suggests that, surprisingly, there may be more advantages to physical invention than previously realized. 39 For the optimal timing of patent filing, I show that while proponents of early filing might be expected to favor mechanisms that contribute to earlier filing, some such mechanisms – such as prophetic examples – do not fit with the traditional justifications for early filing.