Prophetics CP - Michigan 7 2024 CGO

Prophetics CP – UMich ’24 CGO
Notes
Thank you to Sam Wood, Shiwen Huang, Cathryn Wu, Jordan Gordan, Sophie Heinen and Nolan Smith for their work on this file!
This counterplan seems a little confusing at first so don’t worry if it takes a sec to understand.
Overview
Prophetic examples are hypothetical experimental methods and results that innovators submit as part of their patent applications under MPEP § 608.01(p) 2164.02. This is contrasted to working examples, which are tested and proven methods and results.
Unfortunately, the use of prophetic examples causes confusion among scientists who review the applications. Due to real-looking images and a lack of labeling, the vast majority of scientists mistake prophetic examples for real experiments during the application process. This contaminates scientific literature and leads to media misinformation.
The CP solves this by doing the plan only for patents without prophetic examples, abolishing the use of prophetics so that applicants would only be allowed to use working examples. It does this by removing MPEP § 608.01(p) 2164.02, which is the section that allows for prophetics.
The counterplan competes with the aff. Perm do both links to the net benefit; perm do the counterplan is severance if you win normal means. The normal means modules show that MPEP is part of PTO law, which the aff must follow; thus, it would also have to uphold the section that allows prophetics.
There are three scenarios for this counterplan, and they’re all fairly self-explanatory. Contamination of the scientific literature leads to 1) misinformation broadly, which is an impact filter because the public needs to be aware about the world to generate appropriate responses; 2) democratic backsliding, because informed citizens are key to democracy; and 3) truth decay, which is basically where people no longer know what to trust and also filters a variety of existential impacts.
Strategy
Pros of this counterplan: It probably solves the entire aff, and the impact scenarios are quite specific, so other teams are likely not prepped to contest them.
Cons: The internal links of this counterplan are probably the shakiest, so push back on this and try to zero the aff through CP solvency and/or defense so you can win sufficiency. The counterplan is also only functionally competitive, so invest some amount of time winning only functional.
What affs does this counterplan apply to?
This CP only links to patent affs since it only amends a rule of patent applications.
The competition debate is also quite shaky against courts affs; MPEP applies to Congress, not rulings, so the counterplan would probably be plan plus. But that is what you get when you have a topic-oriented process counterplan.
Good luck!
NEG
1NC – Shell
The United States federal government ought to [insert plan text after USFG should] for patents with non-prophetic examples.
In the squo patents allow “prophetic experiments” that scientists believe to be real examples because they are not labeled. This causes misinformation to spread because scientists are not aware they are hypothetical results
Freilich 19, [Janet: Fordham Law professor in the field of Intellectual Property: Patents, Copyright, Trademark, and Trade Secrets, as well as Harvard’s fellow in private law; 2019; “Prophetic Patents”; Fordham Law School; https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2006&context=faculty_scholarship] SH
In most contexts, making up data is forbidden - considered fraudulent, even immoral. Not so in patents. Patents often contain experimental data, and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent Office and federal courts, but are considered equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no in-depth studies of the practice, nor any explanation for why fictional data are allowed in patents. Here, I provide the first historical, theoretical, and empirical analysis of prophetic examples. I collect and analyze a novel dataset of over 2 million U.S. patents and applications from the biology and chemistry industries. I find that at least 17% of experiments in this population are fictional. Through both empirical and theoretical analyses, I weigh the potential costs and benefits of prophetic examples and find that the costs prevail. Prophetic examples could be beneficial if they help patentees; but I find little evidence that they do so, even in the specific situations in which they should be the most useful. Instead, prophetic examples likely hinder innovation because they prevent others from conducting their own experiments – even after the patent has expired and even if the prophetic example is incorrect. Prophetic examples also hopelessly confuse scientists – a shocking 99% of scientific articles incorrectly cite prophetic examples as if they contained factual information – which means that made-up results from patents contaminate the scientific literature.
To be justifiable, prophetic examples must help patentees, but it is not enough for them to merely help patentees. The underlying assumption in the case for prophetic examples is that they help patentees in a way that is not harmful to the patent system more broadly. This assumption has two main components, each of which is discussed below.
1. Chilling Downstream Research
Prophetic examples might help patentees file earlier, broader patents. However, it is far from clear that these broader, earlier filed patents are actually socially beneficial. Broad, early filed patents are supported by adherents of the “prospect” theory of patent law who argue that such patents allows patentees to coordinate technological development in that area. This prevents wasteful races to invent and reduces transaction costs during downstream development. These are all potential benefits of prophetic examples.
However, some scholars worry that overly broad patents reduce competition and block downstream innovation, and that early-filed patents reflect less developed inventions and therefore lead to patents that are more vague, useless, or, if useful, are never commercialized. The problem with such patents is that they might effectively prevent others from working in the areas surrounding the patent. First, while the patent is in force, others cannot do their own experiments in the area covered by the patent - even if the prophetic examples do not work. Even after the patent has expired or been abandoned, it might still chill research in that area because others cannot get a patent on an invention disclosed in or rendered obvious by a prophetic example. Patents are given only for inventions that are new and nonobvious, therefore material that is disclosed, and everything obvious based on that disclosed material, is no longer patentable. This is true even if the subject of the disclosure was never physically created. We know that companies make strategic disclosures in their patents for the express purpose of preventing competitors from obtaining patents. Prophetic examples may be one form of such disclosure.
For instance, in Ex Parte Botond Banfi, the inventors sought to patent the use of iodide to treat microbial diseases. The PTO rejected the application on the grounds that the invention was not new because it had been disclosed in a prior patent. The prior patent had indeed disclosed use of iodide, but in a prophetic example describing the treatment of asthma (which is not a microbial disease). The prophetic example is:
A 45 year old female with a history of severe asthma with a morning peak flow of less than 3 l/sec is treated with…iodide in an aerosol formulation, 2 mg three times daily continuously. After a week of treatment the peak flow improves to 6 l/sec.
Although the example was both prophetic and did not actually involve a microbial disease, the court reasoned that it inherently disclosed use of iodide to kill microbes. If someone had used the technique, it would have incidentally resulted in the removal of microbes from the throat, even though that was not the main purpose of the treatment.
Though there is no evidence that this example was included for the purpose of defensive disclosure, the example shows how use of a prophetic example can prevent patenting in a wide area around the patent. The prior patentee never tried using iodide to treat asthma (indeed, it is not clear that the technique would work), but the patent effectively prevented others from getting later patents on iodide to treat completely different respiratory illnesses. Innovators are scared away from research in areas near prophetic examples either because they believe that someone has already tried the technique or because they worry that they will not be able to get a patent themselves. Any defense of prophetic examples must balance their benefits to patentees against this potential problem.
2. Inaccurate and Misleading
The second potential cost of prophetic examples lies in their ability to satisfy the enablement and written description doctrines. As part of the patent disclosure, prophetic examples need to both teach other scientists how to make and use the invention and help inventors prove possession of the invention. It is only intellectually coherent to allow prophetic examples to serve these functions if they are actually understood by scientists and if they are accurate predictions.
To illustrate, if prophetic examples are used to teach scientists how to make and use an invention, then they must in fact be able to do so. If prophetic examples describe protocols that are entirely incorrect, then the patent reader cannot rely on them for instruction on how to make the invention. Similarly, if scientists are confused or misled by prophetic examples, then they do not actually teach scientists anything. Further, if prophetic examples are used to prove that the inventor had possession of the invention they must again be accurate predictions. If the inventor’s predictions are incorrect, it is doubtful that the inventor actually had possession of the invention described by those same predictions. In addition, once a patent is granted, prophetic examples are presumed to be accurate. The presumption is only reasonable if prophetic examples are in fact likely to be accurate.
At stake is not only whether patent doctrine is satisfied. The patent’s disclosure is also supposed to promote innovation. The standard explanation is that scientists get new technical information from patents and then use that knowledge to improve the technology or make their own inventive leaps. If the information in patents is confusing to these scientists or is simply inaccurate, then it is much harder for patents to promote innovation through disclosure.
Scientific misinformation turns all solvency and triggers an existential laundry list
West & Bergstrom 20 [Jevin D. West is an associate professor in the Information School at the University of Washington. He is the director of UW’s Center for an Informed Public and co-director of its DataLab, where he studies the science of science and the impact of technology on society. Carl T. Bergstrom is a theoretical and evolutionary biologist and a professor at the University of Washington in Seattle, Washington, United States. Bergstrom is a critic of low-quality or misleading scientific research. “Misinformation in and about science” 10/11/20, Proceedings of the National Academy of Sciences of the United States of America, https://doi.org/10.1073/pnas.1912444117] JG
Misinformation has reached crisis proportions. It poses a risk to international peace (1), interferes with democratic decision making (2), endangers the well-being of the planet (3), and threatens public health (4, 5). Public support for policies to control the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) is being undercut by misinformation, leading to the World Health Organization’s “infodemic” declaration (6). Ultimately, misinformation undermines collective sense making and collective action. We cannot solve problems of public health, social inequity, or climate change without also addressing the growing problem of misinformation. Most of the research efforts and interventions examine broad, public consumption of misinformation—modeling the spreading dynamics of falsehoods (7, 8), examining social network effects (9, 10), and evaluating crowd-sourced mediation (11), with a special focus on crisis events (12) and political elections (13). In this article, we turn the spotlight on science. We look at the ways that misinformation can travel within science due to misaligned incentives, out-of-date publishing norms, and sociotechnical systems that concentrate attention and credit on a small subset of the literature. Appealing as it may be to view science as occupying a privileged epistemic position, scientific communication has fallen victim to the ill effects of an attention economy. This is not to say that science is broken. Far from it. Science is the greatest of human inventions for understanding our world, and it functions remarkably well despite these challenges. Still, scientists compete for eyeballs just as journalists do. They face incentives to hype their work and to publish selectively those findings that are surprising and “clickable.” Like other information consumers and producers, researchers rely on search engines, recommendation systems, and social media to find relevant information. In turn, scientists can be susceptible to filter bubbles, predatory publishers, and undue deference to the authority of numbers, P values, and black box algorithms.
1NC – Internal Links
Prophetic examples hinder 17% of experiments and contaminate 99% of scientific data
Freilich 19 [Janet Freilich, Fordham Law professor in the field of Intellectual Property: Patents, Copyright, Trademark, and Trade Secrets, as well as Harvard’s fellow in private law; 2019; Fordham Law School; “FLASH: The Fordham Law Archive of Scholarship and History”; https://ir.lawnet.fordham.edu/faculty_scholarship/1006] shiwen
In most contexts, making up data is forbidden - considered fraudulent, even immoral. Not so in patents. Patents often contain experimental data, and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent Office and federal courts, but are considered equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no in-depth studies of the practice, nor any explanation for why fictional data are allowed in patents.
Here, I provide the first historical, theoretical, and empirical analysis of prophetic examples. I collect and analyze a novel dataset of over 2 million U.S. patents and applications from the biology and chemistry industries. I find that at least 17% of experiments in this population are fictional. Through both empirical and theoretical analyses, I weigh the potential costs and benefits of prophetic examples and find that the costs prevail. Prophetic examples could be beneficial if they help patentees; but I find little evidence that they do so, even in the specific situations in which they should be the most useful. Instead, prophetic examples likely hinder innovation because they prevent others from conducting their own experiments – even after the patent has expired and even if the prophetic example is incorrect. Prophetic examples also hopelessly confuse scientists – a shocking 99% of scientific articles incorrectly cite prophetic examples as if they contained factual information – which means that made-up results from patents contaminate the scientific literature.
Prophetics hinder innovation and contaminate scientific lit – empirics from 2 million patents.
Freilich 19 [Janet Freilich, Fordham Law professor in the field of Intellectual Property: Patents, Copyright, Trademark, and Trade Secrets, as well as Harvard’s fellow in private law; 2019; Fordham Law School; “FLASH: The Fordham Law Archive of Scholarship and History”; https://ir.lawnet.fordham.edu/faculty_scholarship/1006] shiwen
In most contexts, making up data is forbidden - considered fraudulent, even immoral. Not so in patents. Patents often contain experimental data, and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent Office and federal courts, but are considered equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no in-depth studies of the practice, nor any explanation for why fictional data are allowed in patents.
Here, I provide the first historical, theoretical, and empirical analysis of prophetic examples. I collect and analyze a novel dataset of over 2 million U.S. patents and applications from the biology and chemistry industries. I find that at least 17% of experiments in this population are fictional. Through both empirical and theoretical analyses, I weigh the potential costs and benefits of prophetic examples and find that the costs prevail. Prophetic examples could be beneficial if they help patentees; but I find little evidence that they do so, even in the specific situations in which they should be the most useful. Instead, prophetic examples likely hinder innovation because they prevent others from conducting their own experiments – even after the patent has expired and even if the prophetic example is incorrect. Prophetic examples also hopelessly confuse scientists – a shocking 99% of scientific articles incorrectly cite prophetic examples as if they contained factual information – which means that made-up results from patents contaminate the scientific literature.
Prophetic patents empirically zero innovation and cause scientific misinformation in the areas of the aff
Freilich 18 – Janet Freilich is an Associate Professor at Fordham Law School. “Prophetic Patents” 6/25, Social Sciences Research Network, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3202493]
The theoretical case for prophetic examples rests on benefit to patentees. The Patent Act requires inventors to describe how to make and use their invention. Inventors often do this by writing experimental protocols and results in the patent. For example, a patent on a diabetes medication might include an experiment showing how to synthesize the molecule and another showing that the molecule can be given to humans to reduce the need for insulin injections. The broader the patent, the more experiments are required. A patent covering one molecule might only need to include one synthesis protocol, whereas a patent covering a family of one hundred molecules might need to include many more experiments. It is always faster and cheaper to make up data than to conduct real experiments, so if the experiments disclosed in the patent can be fictional, inventors will be able to file broader patents more easily. This should be particularly useful for small companies, who have small budgets and cannot afford extensive real experimentation. For companies of all sizes, broader patents provide a greater reward to the inventor, which might incentivize more innovation. 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. Second, there is no evidence that patents with more prophetic examples are filed earlier than those with fewer prophetic examples – again, contrary to prediction. Finally, although small companies should benefit disproportionately from the ability t

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