‘Fictitious’ patents misleading scientists, researchers warn

Preliminary data show 99 out of 100 patents citing hypothetical examples did not make their prophetic nature clear

June 15, 2019

Scientists need to be more honest when describing their ideas for patent applications, according to the authors of a study highlighting the prevalence of fictitious experiments being incorrectly pitched as tried and tested data.

Writing in Science, two US law professors highlight a lack of awareness of “prophetic examples” – whereby researchers cite data or an experiment that has not yet been conducted – which they say can all too easily lead to confusion and distorted understanding among researchers as well as potential investors.

Under US law, individuals are able to apply to patent an idea or invention that is based on ongoing research as long as they do not use the past tense in their application. But the researchers said this was most often not made clear.

Of 100 randomly selected patents where prophetic outcomes were cited in lieu of existing data, 99 were not cited in a way that made clear the prophetic nature of the patents, they said.

In their paper, “Science fiction: Fictitious experiments in patents”, Janet Freilich, associate professor at Fordham University, and Lisa Larrimore Ouellette, associate professor of law at Stanford University’s law school, give the example of a patent for a new medical procedure.

In it, patent applicants describe the procedure given to “a 46-year-old woman [who] presents with pain localised at the deltoid region”. But what the description does not make clear is that the test has not been given and the woman is fictitious.

Furthermore, the “subtlety of prophetic examples may literally be lost in translation” when descriptions are rendered into other languages for international audiences, they argue.

To rectify this, the professors call for a clear labelling system to be implemented to alert readers to patents based on prophetic examples.

“We think the biggest risk is reader confusion – mainly scientists and investors, but possibly other members of the public,” Professor Freilich told Times Higher Education. “We want a label that clearly conveys that the experiment is not real. We think ‘hypothetical experiment’ does this,” she added.

There is no reason why patents will not be as strong if the applicants make it explicitly clear that these are experiments yet to happen, the authors argue.

“Scientists regularly write grant applications in a way that makes clear what preliminary data they have already acquired and what the expected goal of the proposed project is,” the paper concludes.


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