Nontechnical Disclosure

One of the primary goals of the patent system is the broad dissemination of technical knowledge. Patent law forces inventors to disclose how their inventions work. Inventors seeking a patent are required to describe "the manner and process of making and using" the patented invention. Additionally, a patent must "enable any person skilled in the art.., to make and use" the invention.

Despite this explicit statutory disclosure requirement, patent law could do better at ensuring that patents convey useful information to the public. Academics have vigorously debated about whether and to what degree the patent system performs its disclosure function. Many academics claim that "disclosure" of inventions is less effective than courts presume, with scientists either not caring about or actively ignoring patents and the technical information they contain. These academics argue that the patent document is not a useful source of information for scientists and innovators.

Other academics take the opposite position, arguing that the disclosure mandated by the patent system leads to valuable dissemination of information. This Article argues that both positions, counterintuitively, may be correct in some cases. Patent law may fail to inform skilled artisans of the patented invention's technical details to the degree we would desire, yet still provide valuable nontechnical information to people who are in a position to invest in the invention. The patent document's ability to disclose is not coextensive with its ability to teach about the invention, a fact often ignored in the academic literature.

This underappreciated insight about patent disclosure broadens discussion of the disclosure function's role in information transfer: a patent can inform innovators, investors, and consumers about the value of an inventive idea; a patent can advertise new technologies to fellow technologists; a patent can promote useful embodiments of the invention to investors. All of these are examples of what this Article terms "nontechnical disclosure."