Patent law and open notebook science

The speakers gave an example, but the details are fuzzy. They said they would post the slides, so when that happens, I’ll share them and refer to the timeline.

 

To me, open notebook science can be a major benefit to the new patent process. Since it does cost money to file a provisional application, ONS (or other web disclosure) would provide a free alternative to the provisional application. The only difference between the two routes is that through ONS, the patent is immediately public information, while the provisional application keeps the idea in secret. Because the patent will eventually be public domain, the incentive to innovate is delayed a bit.

It should be noted that even though ONS makes your idea open, and encourages potential modification it does not encourage stealing of the idea. You are still protected from patent infringement. But if a competitor sees your idea and makes non-trivial (non-obvious) changes to your idea, then they can be granted a new patent. That is no different from how the patent process works anyways.

But to me, filing a provision for every idea you ever come up with and paying $125 every time is a waste of money since you aren’t likely to follow through with every idea. It also gives the US patent office a lot of unnecessary paper work, and could actually stifle innovation and creativity. ONS would in turn allow some one to share their ideas and protect the best ones for the original creator (since you have one year from first disclosure). You could use your resources to fight for the ones you want to keep and allow others to cultivate the ideas that you won’t ever get to work towards.

It was interesting that when I asked the speaker about ONS and patents, while he didn’t say the conflicted (cause they don’t), he did say that it didn’t make sense to pursue both paths. His reasoning was basically what I outlined above, but it also felt like there was a money undertone to it. You can’t make money if you share your ideas. To that I disagree, but that’s an entirely different story altogether. One that I hope to address in April.

  • Jean-Claude Bradley

    When my group was very aggressive on patenting the provisional patent was a really useful tool. As soon as we had a draft of a paper about to be submitted for publication we stuck it in an envelope and that was the provisional patent – buying us one year for US and international rights to file an actual patent. Compared to the cost of the patent the provisional patent was very little.