This Article examines the use of patents to hide problems. It explores examples of patent cover-up in the areas of identification chips, genetic testing, and agricultural biotechnology. I discuss how much control patent holders should be able to exercise over information related to their technology. Information resulting from independent quality assessment should be beyond the patent holder’s reach, considering its significance to privacy, health, and security. Unless courts interpret existing patent doctrines broadly enough to permit quality assessment, I propose that Congress or the courts should adopt a defense to infringement to allow for it.
The proposed exception would allow for the use of a patented invention for quality assessment of technology covered by the patent. Quality assessment includes activities necessary to identify and analyze limitations, accuracy, validity, and weaknesses of the patented invention. Previous proposals to expand protection for experimental or fair uses have concentrated on the importance of improvements and alternatives. The proposed exception focuses on the value of information. Because the quality assessment exception does not protect substitutes that could supplant demand for the patented technology, it is less likely to undercut incentives to innovate. An exception permitting quality assessment strikes a reasonable balance between the normal exploitation of the patent and the legitimate interests of the public.