WISCONSIN LAW REVIEW
Laboratories have determined that these devices are useless (that is, they are nothing more than very expensive dowsing rods).37
Yet even where no marketable product exists, the possibility of the patent owner defrauding investors remains a real possibility.38 A patent can lend an air of “official recognition by the U.S. government” to an inoperable invention that may help lure less-sophisticated investors into backing a nonexistent product slated to appear at some future date.39 As the court in In re Citron observed, “it is against public policy to place the oblique imprimatur of the Government via the patent grant on incredible or misleading unproven assertions in view of the possibility of exploitation of such statements in issued patents by unscrupulous persons.”40
The existence of a patent on an inoperable invention increases the harm to the consumer or investor because of the public perception that patented inventions are superior to unpatented ones.41 Part of the problem may be that the public believes that inoperable inventions are unpatentable and, therefore, that the USPTO does not issue patents to such inventions.42 This perception is only partially correct. As discussed in more detail later, an inoperable invention is indeed technically unpatentable, yet the USPTO often fails to deny the patent.43 Like it or not, the public depends on the USPTO to provide some measure of protection against consumer products that do not work as claimed.44 Suggesting that the problem should be solved by reeducating the public about the limitations of the patent system is akin to suggesting that problems in the drug approval process be solved by asking consumers to be more skeptical of Food and Drug Administration approval.
37. 38. 39. 40. 41.
See infra Part IV.A. MERGES & DUFFY, supra note 26, at 216. Id. 325 F.2d 248, 253 (C.C.P.A. 1963). DAVID PRESSMAN, PATENT IT YOURSELF 10 (11th ed. 2005) (stating that
people think “[i]f a product has been patented, it’s bound to be superior”).
See MERGES & DUFFY, supra note 26, at 216.
See infra Part II.
Bonnie Grant, Note, Deficiencies and Proposed Recommendations to the
False Marketing Statute: Controlling Use of the Term ‘Patent Pending,’ 12 J. INTELL. PROP. L. 283, 295 (2004) (noting that although there are no scientific studies on the effects of patenting on consumers, they may see the patent as an endorsement by the USPTO that the product is useful).