The Null Patent

Abstract

Failure is the basis of much of scientific progress because it plays a key role in knowledge building. In fact, negative results comprise the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information - whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative results can play in determining patentability has heretofore been overlooked. This Article addresses these issues by proposing a new medium of disclosure called the null patent. While null patents would lack claims and therefore not confer a right to exclude, they would strongly resemble other patent documents in substantive technical content and bibliographic information - thus making them amenable to technology-based classification, indexing, and open-access searching. This new medium of disclosure has potentially transformative implications for both patent law and science. Providing the Patent Office with ready access to a vast body of technical information would lead to a more thorough examination and, as a consequence, improve patent quality. Providing inventors with access to this information would allow them to gauge patentability ex ante with greater certainty. And since the null patent repository would be freely accessible, it would serve the public good by enriching the public storehouse of knowledge. Finally, null patents would promote broader policy goals shared by both science and patent law - namely, to promote technological progress through the dissemination of knowledge, coordinate the future development of technology, and spur innovation.