Prophetic patents don’t benefit patentees

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.