Freilich introduced the problem as a counterargument then refuted it – small businesses don’t need prophetics.
Freilich 19 [Janet Freilich, writer and teacher in patent law, intellectual property, and civil procedure. She has published or has articles forthcoming in Science, the Review of Statistics and Economics, the University of Pennsylvania Law Review, the Virginia Law Review, the Iowa Law Review, and others. She has received the Fordham Law Dean's Distinguished Research Award, the Samsung-Stanford Patent Prize, the Irving Oberman Memorial Award in Intellectual Property, and the Cloud Based Research Computing Project Award. Professor Freilich was a visiting scholar at Massachusetts Institute of Technology’s Sloan School of Management. She was Harvard Law School’s inaugural postdoctoral fellow in private law and intellectual property with the Program on the Foundations of Private Law. She graduated magna cum laude from Harvard Law School and summa cum laude from Cornell University with a bachelor’s degree in molecular biology; 2019; Fordham Law School; “FLASH: The Fordham Law Archive of Scholarship and History”; https://ir.lawnet.fordham.edu/faculty_scholarship/1006] shiwen
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.