Claims That Scientists are Underreporting Federal Support on Patents Don’t Pass the Smell Test

A new article in Science claims that nearly one-third of patents arising from federally funded research fail to disclose this funding. Such omissions, if intentional, could violate federal law.

If true, this would be a bombshell.

Fortunately, it’s not true. The study’s methodology is deeply flawed. Yet it could nevertheless provide a pretext for lawmakers to enact unnecessary and burdensome legislation, killing public-private research collaborations.

The Science study asserts that 28% of patents from federally funded research fail to disclose that support. Yet the methodology of the study doesn’t support any such sweeping conclusion.

The study’s flaw? It compares disclosures in academic papers with disclosures in associated patent filings, as if they should be identical twins. In reality, they’re more like distant cousins. When an academic paper mentions federal funding but a related patent doesn’t, the Science paper cries foul. But this ignores the reality that the U.S. Patent and Trademark Office (USPTO) spells out very specific disclosure requirements for all patent applications. Academic journals have different and varying standards for attribution and disclosure.

Disclosure Requirements: Academia vs. USPTO

In academia, authorship is often expansive. Modern science, in particular, is increasingly collaborative. A 2015 Nature article reported a physics paper with 5,000 authors, while a PLOS ONE study shows rising co-authorship across all fields. This trend is particularly pronounced in physics, medicine, and infectious disease research. Such expansive collaboration often results in publication of funding disclosure statements for all contributors.

Patents operate quite differently. U.S. patent law mandates that applications list the “true and only” inventors, focusing almost exclusively on who conceived the idea. An authoritative 2005 article spells out nine categories of individuals who might have worked on a project but should not be listed as “inventors” on the patent application — and therefore require no disclosure of their funding. Simply identifying the problem the discovery solves, participating in consultations, or reducing an invention to practice does not qualify one as an inventor. Yet, in some cases, such non-inventor participants might receive author credit in the academic paper on the subject.

Complying with patent office disclosure requirements is no mere formality. A court may invalidate a patent that names more or fewer than the true inventors, even if the error was unintentional. Patent disputes often involve billions of dollars and can reshape entire industries.

If a court finds deceptive intent in naming inventors, the patent becomes permanently unenforceable—thus jeopardizing the patent holder’s ability to exclusively sell or license the invention.

Misleading Claims Can Lead to Real Harm for Innovators

The Science paper also ignores the reality that inventors sometimes file patent applications before federal funding enters the pipeline. It’s not uncommon for initial discoveries to be patented before attracting government grants for further development. Patent applications can’t acknowledge funding that hasn’t yet been provided.

A recent study published in a JAMA paper falls into similar traps, making grand claims about government contributions to drug development based on the same dubious comparisons. By ignoring the key distinctions between patent applications and academic papers, these studies distort our understanding of the innovation ecosystem and the critical role that patents play.

These misleading claims are part of a troubling pattern. For years, those seeking to weaken drug patents have been hunting for evidence that pharmaceutical companies are “gaming the system.” Their efforts to produce evidence have come up empty-handed, so some have resorted to dubious assertions flowing from questionable methodology.

This bodes ill for American innovators in the biotech sector and beyond. Bringing a new drug to market is a marathon that can take over a decade and cost billions of dollars. Without strong and reliable patent protections, companies and investors won’t make those investments.

Smell Test Failed

The strange implication of these papers is that biopharmaceutical innovators were so lazy, incompetent, or duplicitous in complying with disclosure requirements on thousands of patents that they were willing to risk losing them if the truth came out. But whether an invention is eligible for a patent depends not in the least on whether inventors received federal funding. There is literally no motive to conceal such funding and everything to lose if one does.

In fact, those filing patent applications go to great lengths to ensure they are in full compliance with USPTO requirements. The sinister accusations these flawed studies insinuate don’t pass the smell test.

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Author: ginasanders
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