Around 400 U.S. patents contain at least one citation to a retracted scientific paper, a new study has found.
The analysis, posted last month to the preprint server SSRN, analyzed granted patents in the United States in PatentsView, a database developed by the United States Patent and Trademark Office (USPTO) using artificial intelligence algorithms, and the Retraction Watch Database.
Of the more than 13 million patents in the USPTO database, 136,162 contained citations to at least one scientific paper. Of these, 401 patents cited retracted papers: 195 cited the retracted paper before it was filed, 92 cited papers retracted while being examined, and 114 cited a paper that was retracted after the patent was granted, the study revealed.
“Science has correction mechanisms, but correction signals often do not travel into patent records,” Hana Kim, of the Korea Advanced Institute of Science and Technology in Daejeon, South Korea, who conducted the study, told Retraction Watch in an interview.
Kim said citing a retracted paper shouldn’t automatically invalidate a patent but argued patent offices and information platforms must be able to identify retracted papers easily. “That is a fixable infrastructure problem,” she said, noting that patent systems should be linked to metadata from the Retraction Watch Database and Crossref. Kim said patents that cite retracted papers should be corrected.
Of the 401 patents that cite retracted papers, Kim conducted a further audit of 39 high-impact filings — defined by how many citations the patent itself has received, among other reasons. Nearly half (19) relied substantially on the retracted papers they cited.
Those 39 patents include one on DNA microtechnologies and nanotechnologies, one on a novel way of engineering transgenic animal models, and one for delivering therapeutic proteins into cells using gene editing techniques. We reached out to the lead scientists named on all three patents to find out why their patents cite retracted papers or if they plan to do anything about it, but didn’t hear back.
Janet Freilich, a law professor at Boston University who was not involved with the new study but has written about inaccurate information in patents, agreed with Kim. “There are a lot of inaccuracies that are permissible in a patent that would not be permissible in a paper,” she told us. “The standards are simply different.”
“It’s an embarrassment that the patent office doesn’t pay attention and then act upon information about scientific papers being tainted by retraction,” said Michael Meurer, a law professor also based at Boston University who has written a book on failures in the patent system.
Freilich said she thinks the conclusions of Kim’s study are likely to be “broadly correct.” Patents should recognize when papers supporting them have been pulled, she said, because one purpose of issuing patents is to disseminate scientific information.
“The reason that many countries make patents public is because the patent system is supposed to be a repository of cutting-edge information that other scientists can then learn from and build on,” Freilich said. “That works a lot better if there’s a process for identifying and dealing with erroneous information, which otherwise will propagate and confuse readers.”
Rules for amending patents when mistakes or errors are found differ in different jurisdictions, noted Freilich, who has previously called for new mechanisms to retract patents. The United States has no process to formally retract patents, she said, but if a patent contains inaccurate information, a judge may choose to invalidate it in court, which would mean it can’t be enforced against other patents.
“That would happen if the informational problems are severe enough that the patent is then deemed not to meet the required disclosure standards but those required legal standards don’t fully match up with the scientific notion of retraction,” Frelich said. “That doesn’t really do anything for the information because the information is still out there.”
Although in some cases a certificate of correction can be appended to the patent, Freilich said, it does not change the text of the patent itself and is usually not easy to access. “It’s not as good as a journal that will put the red line through information,” she said.
Certificates of correction are also not common, Freilich said, and often don’t correct the record for initial patent filings, so earlier, incorrect versions could still be accessible. “It ought to be a more commonly used mechanism,” she said. “The patent office is not used to the idea of these kinds of corrections.”
But Freilich said “no new matter” is a long-standing rule in U.S. patent law that forbids adding new material to a patent that wasn’t in the originally filed document. “The concern is that you would try to broaden your patent or strengthen your patent in ways that would not be fair to either the public or other inventors,” she said.
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Patents are legal documents, not scientific publications. Inventors must disclose all prior art. It doesn’t matter if that prior art was retracted – it still has to be disclosed if it was published and the inventors were aware of it. Citing prior art does not mean that the inventors are relying on its validity. Patents are granted in return for disseminating the inventor’s novel idea, not disseminating the prior art, which is already public. “Retracting” a patent for citing a retracted scientific paper makes no sense at all.
” “Retracting” a patent for citing a retracted scientific paper makes no sense at all.”
Implying that the patent office should police patents for, presumably, their entire 20 year life span makes even less sense.
“Of the 401 patents that cite retracted papers, Kim conducted a further audit of 39 high-impact filings — defined by how many citations the patent itself has received, among other reasons. Nearly half (19) relied substantially on the retracted papers they cited.”
401 out of over 13 MILLION cited retracted papers, and a whopping 19 “relied substantially” on those retracted papers. These numbers are so vanishingly small (<2 ppm) I fail to see a problem here or why this might even be newsworthy.
to clarify, the way I read that text is that 39 patents were pulled for further evaluation and that, of those, 19 relied substantially on retracted papers. this is not at all the same as saying that only 19 out of 13 million were problematic. the way I read it, of 130,000 patents that cited papers, 401 referred to retracted papers– a small sample of 39 revealed 19 that had a substantial connection to a retracted paper. if you extrapolate to then 400 total, that suggests perhaps 200 patents could be suspect.
that’s tenfold more than a tiny 19.
to me, it’s significant because the patent asserts that a new method actually works, and if it relies on a retracted paper, it may not work at all when the reader tries to reconstruct it. i’m not a patent examiner, but it seems to me that might be a fatal flaw.
There’s no guarantee that any patented invention will “work”. Many many patents are granted for inventions based on initial experiments, and later experiments show that the invention has an unforseen problem. Patent examiners don’t evaluate the scientific data in a patent application the way reviewers for journals evaluate the data in a manuscript. It’s not the examiner’s job to vet the data or question statistical methods. Entities applying for patent are motivated to get useful inventions patented on the basis of promising experiments and have no reason to spend 10’s of thousands or more in having useless things patented. (While academic authors can and do benefit from a publication even it it turns out to be fatally flawed.) Industry researchers understand what patent disclosures are and use them accordingly. Patents aren’t invalidated if the invention turns out to have a fatal flaw that makes the invention useless. The invention and the patent simply becomes useless, and the money spent on lawyers was wasted. No one with any degree of sophistication doing research with a goal of inventing something useful takes prior art patents as proof that something “works”.
The fact that <2 ppm of patents “rely substantially” on retracted papers shows that patent prosecution is a far more robust method of preventing the dissemination of information based on retracted papers than is purely academic publishing.
First a bit of background and full disclosure: I am an inventor with just over a hundred US patents granted and hundreds more internationally. I’ve also published peer reviewed papers as well as having reviewed my share. So, take my comments for what that might tell you.
First I’m dumbfounded by the notion that a patent can’t have a citation or reference to a paper that has been retracted. The law requires ALL known material that reads on the invention, especially the claims. It does not matter that the editors of a journal saw fit to retract any given paper cited. In point of fact, a retracted paper has the same weight as a newspaper article or even someone’s public blog, if it directly anticipated or previously disclosed the invention claimed. What matters was that the information was available to the public before the patent filing date.
Further, scientific papers can be retracted for reasons that have nothing to do with the validity of the disclosure of matter that formed the basis for it’s citation in the patent. For example, if the paper was written by a paper mill and the putative authors weren’t really the true authors is a valid reason for retraction. Yet that would have zero weight for the need for said paper to be cited by the patent. Said citation could occur years after the retraction and still be a valid and useful, even required citation, by law.
So, can we please stop the hand wringing over this silly non-issue?
Whenever IP in general or patents in particular are the subject of RW, nonsense ensues.
It’s almost as if patent law is discipline outside the scope of science.