ABSTRACT
There is a ‘replicability crisis’ in the scientific literature. Scientists attempting to redo experiments in reputable, peer-reviewed journals have found that staggering numbers of these experiments – up to 90% – do not work. Patents, like scientific articles, contain experiments. These experiments often form the backbone of the patent and provide crucial support for patentability. Patent examiners use these experiments to evaluate whether the invention works, and thus whether the patent should be granted. The replicability crisis in the scientific literature is therefore of utmost importance to the patent system. Transferring the insights of the replicability crisis to patents begs the question of whether experiments in patents are similarly irreplicable – a question that has not previously been asked in the literature.
This Article’s novel empirical study of 500 patents and applications measures the replicability of experiments in patents. Using methodological quality of the experiment as a proxy for replicability, this study finds that experiments in patents have very poor methodological quality, which means that they are likely irreplicable at rates at least as high as experiments in scientific journals …
Freilich, Janet, The Replicability Crisis in Patent Law (February 15, 2020). Indiana Law Journal, volume 95, 2020.
First posted 2020-03-10 07:07:57
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