The Strategic Use of Fuzziness in Patent Specifications

For providing protection for intellectual property, patent law requires the comprehensive description of the invention, its making and using. The goal of this disclosure requirement is to provide newly generated knowledge to the public, and thus, to foster technological progress. Since a patent affects competition on the market for ideas and the product market, the patenting decision incorporates a strategic decision. Economic literature commonly ignores that the extent to which a patent actually discloses information about the invention itself is a strategic decision of the applicant. In this paper, a three-stage theoretical model illustrates the decision process of a patent applicant. A follow-on invention can successfully be made by a potential follower who bases his research on the original patent. The applicant can choose between either a fuzzy or a distinct formulation in the patent specification whereas he has to take into account two countervailing effects: On the one hand, a fuzzy description decreases the usability of a patent for the followers as it increases their research costs and at the same time their probability of success to achieve the follow-on invention. On the other hand, fuzziness decreases the granting probability. This model can also be linked to the quality of patent examination. Even if the quality is high (i.e. the granting probability for a fuzzy patent is lower than the one for a distinct patent) some cases exist for which fuzzy description is more profitable for the inventor despite the higher risk of not receiving the grant. These results allow careful recommendations for policymakers and patent offices. If the goal of patent policy is an appropriate incentive system which yields clear and precise patent descriptions in order to foster technological progress, the granting probability should be strongly reduced for fuzzy specifications. A possible way to achieve this could be the request for a proof of concept and/or experimentation data. This may improve the quality of examination and the quality of knowledge disclosure via patents. Such a procedure would be analogous to the publication procedures of scientific results, for which a precise description of data, measurement and methods is required.

Zaby, Alexandra and Diana Heger (2013), The Strategic Use of Fuzziness in Patent Specifications, ZEW Discussion Paper No. 13-043, Mannheim.