Patent Laws Might Be Incentivizing the Wrong Scientific Approaches
We’ve blogged about legal translation services for patent infringement and prosecution cases. There is now a new serious issue related to patent translation services. It sounds serious, because it is. Important scientific research and inventions seem to be facing a world-wide reproducibility crisis. You likely have heard of scientific experiments going through a peer-review process. That is when scientific research is, essentially, double-checked by other scientists who are able to reproduce the results of a particular experiment. The more that others are able to reproduce the results, the more credible the research.
These days, however, that reproducibility with regard to patents is not happening. In areas from biopharmaceuticals, to aerospace engineering, to quantum computing, outside researchers are unable to recreate the stated results from scientific work. In fact, one of the world’s premier scientific journals, Nature, conducted a survey of 1,500 researchers. That survey demonstrated that over 70 percent of researchers have tried and been unable to reproduce another scientist’s experiment. That is a serious problem.
What is Causing the Reproducibility Crisis?
Attempts to understand the source of the reproducibility crisis have led to investigations into the design of the relevant experiments and the research enterprise itself. However, there is one culprit that has remained under the radar with regard to the crisis. As we learn from the recent article by Professor Sherkow, “Patents, Promises, and Reproducibility,” published in the Georgetown Journal of International Law, that culprit is, of all things, patent law.
At first blush, you may be asking – what does reproducibility of a science experiment have to do with patent law? Yet, with a little examination, you can easily see that both international and domestic patent laws encourage researchers to get their inventions out as quickly as possible. That drive to be the first to report on a discovery or the results of an experiment means that the disclosing researcher can claim credit for the invention or discovery at hand.
Thus, the incentives created by patent laws around the world lead to only scant disclosure of complex research that is not fully formed, or requires a great deal more specificity. In turn, other researchers cannot reproduce the initial experiment or discovery because the actual research needs far more robust data and more disclosure of methods and processes.
Was Patent Law Intended to Motivate Researchers to Publish Only Minimal Information?
Patent doctrines throughout the world actually appear to, at least on paper, encourage the opposite. For example, in the United States, the doctrine of “enablement” demands that anyone applying for a patent must explain their inventions with sufficient detail that “persons having ordinary skill in the art” would be able to make and use them.
In Canada, the “promise” doctrine provides that if a patent application makes the promise of a certain utility, then the invention is only deemed to be successful if it fulfills that promise. Finally, in continental Europe, there is something called the “industrial application requirement.” That standard determines whether patent disclosures allow for the invention to be adequately “made or used in any kind of industry.”
Even though those three similar doctrines appear to call for maximum specificity, the reality in the patent arena is much different. Applying the doctrines in conjunction with international agreements and varying language challenges has resulted in a failure to properly stop the problem of patent disclosures that cannot be reproduced. Further, the weakness of those doctrines has become the norm over time.
Why Are Patent Disclosures Difficult to Police?
The answer to the above question really is related to the concept of the “race to the bottom.” In the interest of harmonizing all of the various international patent doctrines, the least restrictive standard is the one that prevails. Accordingly, more and more inventions that cannot be reproduced have applications that are granted.
The end result is that domestic institutions have their hands tied when it comes to trying to invalidate or cancel patents that are based on suspicious findings and science. One recent decision in Canada reveals that reality. In AstraZeneca Canada Inc. v. Apotex Inc., the Supreme Court of Canada, in order to keep Canada’s patent law in line with other treaty partners, essentially eliminated Canada’s “promise doctrine.”
Is There a Way to Solve the Reproducibility Problem?
Given international patent law’s inability to cancel faulty patents, there is a vicious cycle of un-reproducible data. Again, because researchers wish to beat the competition by getting to the finish line first (so that they can ultimately reap the commercial benefits of an invention), they file for patents earlier and earlier with ever-increasing data points that are not viable. Thus, patent law’s role in creating un-reproducible results is as serious as the impact of poor scientific controls, or experimenter bias, on scientific experiments.
With regard to solutions, one of the best approaches is making sure that the domestic disclosure doctrines discussed above are closely aligned with scientific norms. In other words, patent examiners should have more power to demand reproducible data. Also, governments should make legal changes that make “getting to the finish line first” less important than providing results in a patent application that are clearly reproducible.
Experienced Patent Translators for Patent Applications
One should not overlook the importance of proper translations of patent applications. As discussed in this article, patent law is international, and thus researchers and inventors must be ready to have their applications in various languages.
Oftentimes, patent applications contain highly technical language. A person who is bilingual would not necessarily be able to translate a patent application because it will contain many “terms of art” that are not common in regular speech. Thus, a qualified patent translator is needed to accurately translate the technical language in a manner that can be understood in the translated language. To learn more about the added value that comes from working with legal translators, contact All Language Alliance, Inc.
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