A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. (Wikipedia, “Patent” accessed 12-5-19).
Patents offer a quid-pro-quo to inventors that gives them monopolistic rights for a period of time in exchange for teaching the public about their invention. The key step is reduction to practice. In science, reduction to practice is often reported as an experiment including results.
A recent article in Science reports that patents often report fictitious experiments1. When I read this, I felt sucker-punched in my gut. Several times, I’ve tried to reproduce patent reports without success. I felt the problem was my technique, or something lost in translation. Cynically, I suspected that the lawyers deliberately omitted a key step, reagent or condition, etc. However, now I understand that the experiment may not have been run at all! The authors point out that “prophetic examples” are a common practice in US patent composition. But this is dry labbing! Condoned and practiced by lawyers! No wonder people complain about problems in reproducing articles, especially patents.
The authors report that the key to this charade is the use of present or future tense in the examples used in the patent. The custom is to use past tense for actual experiments. So, if you read “were” as in “were mixed” or “were added” etc., you could be justified in believing that the experiment was done. However, if you see “are mixed” or “will be added”, beware! The only clue you have is present or future tense in the examples reported in the patent document.
In some rare cases, such as “read” the past and present tense are the same.
Pity the non-scientist such as investor, reporter, or English as a Second Language (ESL) reader. However, I wonder if the tense protocol carries over for patents in foreign languages? When I read a foreign language patent, my focus is on translating and connecting the words. Subtleties such as tense are easily overlooked. Fortunately, I’ve only had to read a few in my career.
The authors propose a simple solution for American patents:
"A simple and effective solution is to require that prophetic examples in new patent applications be clearly labeled, perhaps with a heading such as “hypothetical experiment” or an introductory phrase such as “it is expected that these experiments would provide these results.”
I want to thank the authors for shining bright light on a problem that can, and I’m sure has caused, great confusion in science. Their proposed solution seems easy to implement. Further, there is no corresponding value in continuing the present practice.
So, write your congresspersons to make them aware of the problem and proposed solution. I also recommend copying the President and CEO of the American Chemical Society.
H. N. Cheng, Ph.D., President-Elect for ACS in 2020. Thomas M. Connelly Jr., Ph.D., ACS executive director and CEO,
American Chemical Society
1155 Sixteenth St. NW, Washington, D.C. 20036, USA
1. Janet Freilich and Lisa Larrimore Ouellette, “Science Fiction: Fictitious experiments in patents” Science June 14, 2019, Vol 364 issue 6445 pg. 1036.