Transparency

The United States patent regime is a quintessential notice system. Implicit in its design is the concept that one attempting to license a patent can identify those who hold the requisite rights and the territory that the patent holders claim as their own. As the system has evolved, however, it bears little resemblance to the idealized form. Little scholarship has addressed problems related to notice within the modern patent system, largely because these problems have sprung up so recently. In the last five to seven years, an entire Hobbit’s world has been created under the foliage. Moreover, historic scholarly discussions of notice generally have focused on the role of governmental actors in ensuring that a patent can be properly understood and interpreted. In contrast, this article argues that market information is a critical element of the notice function of patents. One can think of the mechanisms for providing that market information as “Transparency.” To address transparency insufficiencies, one need not write on a blank slate. Rather, this article suggests borrowing from the substantial body of well-developed doctrine and literature concerning disclosure in the realm of corporate securities and explores how these doctrines could be molded to patent concerns. The patent asset is imbued with public interest by virtue of the fact that it is a government grant, bestowed for constitutional purposes. As with the trading of public securities, the trading of an asset imbued with the public interest must be sufficiently regulated to ensure proper functioning of that trading market.