![[Refereed]](http://www.istl.org/graphics/r2.gif){kind=small}
Converting STEM Doctoral Dissertations into Patent Applications: A Study of Chemistry, Physics, Mathematics, and Chemical Engineering Dissertations from CIC Institutions
Nancy J. Butkovich
Head, Physical and Mathematical Sciences Library
The Pennsylvania State University
University Park, Pennsylvania
njb2@psu.edu
http://orcid.org/0000-0002-9188-6518
Abstract
Doctoral candidates may request short-term embargoes on the release of their dissertations in order to apply for patents. This study examines how often inventions described in dissertations in chemical engineering, chemistry, physics, and mathematics are converted into U.S. patent applications, as well as the relationship between dissertation approval dates and patent application filing dates. Dissertations approved in 2008 by the 13 Committee on Institutional Cooperation universities provided the sample populations. Authors were searched as inventors in the U.S. Patent and Trademark Office's Patent Applications Full-text database to identify relevant patent applications. The number of dissertations yielding applications varied by discipline. Mathematics had none; chemical engineering had the most. The majority of applications in chemical engineering and chemistry were filed either prior to or in the same month as the dissertation approval dates; all of those in physics were filed after them. These results will be of interest to librarians, administrators, advisors, and anyone else associated with determining and approving embargoes for dissertations, as well as science and engineering librarians working with graduate students interested in patenting the results of their research.
Introduction
Doctoral dissertations contain the results of years of original research; they may also contain patentable inventions. To protect these inventions, doctoral candidates may request a delay (embargo) on the public release of their dissertations until their patent applications are filed. These delays are important. An inventor may be unable to file a patent application if an invention included in a dissertation is made public too soon. This raises several questions:
- How many dissertations are embargoed for the purpose of filing patent applications?
- Is there a correlation between embargoes and patent applications?
- How many dissertations are developed into patent applications?
- What is the time lag between dissertation approval dates and patent application filing dates? An application is given a filing date when it arrives at the U.S. Patent and Trademark Office (USPTO), although there are some exceptions to this (Stim 2012, 84).
- Of the dissertations that produce patent applications, what is the ratio of applications per dissertation in each discipline?
This article explores these questions by examining a random systematic sample of dissertations completed in 2008 in chemical engineering, chemistry, mathematics, and physics at the universities of the Committee on Institutional Cooperation (CIC). These include University of Chicago, University of Illinois at Urbana-Champaign, Indiana University, University of Iowa, University of Michigan, Michigan State University, University of Minnesota, University of Nebraska-Lincoln, Northwestern University, Ohio State University, Pennsylvania State University, Purdue University, and University of Wisconsin-Madison (Committee on Institutional Cooperation n.d.). The University of Maryland and Rutgers University were not CIC members when this study was conducted (CIC-Expansion n.d.).
Literature Review
This author was unable to locate any prior studies analyzing the frequency with which patent applications based on doctoral dissertations were filed. However, two bodies of literature provide useful background information. The first relates to delayed release of dissertations. Most of this information involves publications and copyright rather than patents, but some of the information is relevant to this study.
The development and implementation of electronic theses and dissertations (ETDs) highlights a conflict between the principles of open access, publishers' polices regarding prior publication, and patent-granting agencies' requirements. As universities began requiring ETDs, some graduate students were reluctant to make their dissertations publicly available until they were reworked into publishable forms (Nelson 1997; Carlson 2003; Lippincott & Lynch 2010; Lowry 2006). At the University of Maryland, Science-Technology-Engineering-Mathematics (STEM) doctoral candidates were comfortable with short embargoes of up to one year, while those in the arts and humanities wanted longer ones, since dissertations in the latter disciplines were more likely to be published as books "after extensive revision" (Lowry 2006, 390). Other studies also noted the need for embargoes for patent filing purposes (Mugridge and Kellerman 2002; Chiang 2005; Fyffe & Welburn 2008; Lippincott & Lynch 2010). Some also called for instruction and support for graduate students and researchers interested in filing patent applications (Chiang 2005; Fyffe & Welburn 2008; Lippincott & Lynch 2010).
As a result, many universities began permitting students to request embargoes of varying lengths (Nelson 1997; Carlson 2003; Fyffe & Welburn 2008). A 2008 survey of Coalition for Networked Information members found that "87% of the institutions [with ETDs] had a policy allowing students to request a limited-time embargo, and 10% had a policy allowing students to request a permanent embargo" (Lippincott & Lynch 2010, 10). The management of these embargoes presented some challenges (Mugridge & Kellerman 2003), and requests are not automatically granted. At Ohio State University, for example, the Graduate School must approve them, and the maximum time allowed for an embargo is five years (Electronic Dissemination 2014).
The numbers of requests are increasing at some institutions. At Northwestern University, redacted lists of dissertations submitted to the ProQuest Dissertations and Theses A&I (PDTAI) database (K. Veraldi, personal communication, June 11, 2013) indicated the percentage of dissertations embargoed for any reason increased from 22 percent in 2011-2012 to 24 percent in 2012-2013. The University of Wisconsin-Madison Graduate Faculty Executive Committee also noted an increase and discussed allowing a one-year automatic embargo on paper and electronic dissertations if the student so desired. Longer embargo periods would need the approval of the Associate Deans (Minutes 2013).
The second body of literature concerns the role of dissertations as prior art. While a detailed analysis is beyond the scope of this article and the expertise of this author, some discussion is necessary. Prior art is defined as "all previous developments that are used by the U.S. Patent and Trademark Office and the courts...to decide whether a particular invention is sufficiently novel and nonobvious to qualify for a U.S. patent" (Stim 2012, 143). Early decisions involving dissertations as prior art had to establish whether a dissertation qualified as a printed publication and whether and when the dissertation became publicly available (Gulliksen v. Halberg v. Edgerton v. Scott 1937; Hamilton Laboratories, Inc. v. Massengill 1940; Ex parte Hershberger 1952; In the Matter of the Application of John William Bayer 1978).
There are several discussions in the technical, higher education, and patent literature which discuss prior art in relation to disclosure of patentable inventions in a variety of publications including dissertations (Gray 1957; Simmons 1995; Palladino 1999; Copeland & Meagher 2005; van Staveren 2009; Brougher 2010). In re Leo M. Hall (1986), discussed at least briefly by many if not most of the articles in this portion of the literature review, examined a situation in which a dissertation from a foreign university was accepted as prior art. An affidavit from a librarian there indicated it was available for public viewing at least one year prior to the filing date of the patent application, resulting in the rejection of 25 claims contained in the application. An article by Capano, et al. (1991) analyzed the decision of the court with regard to In re Marshall W. Cronyn (1989), in which three theses were not accepted as prior art because the level and kind of indexing and cataloging were such that the public would be unlikely to know the theses were available.
Vick (1990) provides an excellent history and overview of issues regarding printed publications as prior art. Four additional papers carry the overview forward by discussing aspects of electronic documents as prior art and the Internet as a medium for distributing prior art references (Pierotti 2002; Wright 2003; van Staveren 2009; Brougher 2010). The Manual of Patent Examining Procedure (MPEP) summarizes court cases related to this topic, including a section specifically discussing the conditions established by the courts under which theses and dissertations have or have not been accepted as prior art (USPTO 2014a). Another MPEP section discusses the conditions for rejecting a patent application on the basis of prior art (USPTO 2014b).
In 2011 the U.S. Congress passed the Leahy-Smith America Invents Act, which introduced significant changes to U.S. patent law. Most of them are not relevant to this project, but one that is concerns Section 102, which addresses novelty, and states: "A person shall be entitled to a patent unless - (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention..." (Leahy-Smith 2011, 2); however, the Act also allows a one year exemption provided that "(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or (B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor" (Leahy-Smith 2011, 3).
This suggests inventions described in dissertations could benefit from this exemption under some circumstances, based on how close the courts will require the similarity between the invention described in the dissertation and in the patent application to be. As yet, this is unclear, because no cases involving this portion of the Act have gone to trial (M. Risch, personal communication to B. Karl, Feb. 17, 2015).
Although this study focused on U.S. patent applications, inventors may also choose to file for patents in other countries. Filing internationally is more complicated because regulations regarding prior art and grace periods differ with each country. Failure to observe these regulations could result in a patent application being rejected should the invention be made publicly available prior to an application filing date (Oppenheim 1985; M. Risch, personal communication to B. Karl, Feb. 17, 2015).
Method
This study examined 620 dissertations approved in 2008 by the 13 CIC institutions and identified relevant U.S. patent application filings. These universities were selected because they have well-established scientific research programs. All offer doctorates in chemistry, (American Chemical Society 2007; 2009) mathematics (Peterson's 2008), and physics (American Institute of Physics 2008). All but two, University of Chicago and Indiana University, have doctoral programs in chemical engineering (American Chemical Society 2007; 2009). These disciplines were chosen to provide a range between theoretical (mathematics) and applied research (chemical engineering).
Dissertations were identified using the PDTAI database. There are valid concerns regarding the completeness of this database. For example, some institutions do not require students to deposit the full text of their dissertations with ProQuest; in at least one case, University of Florida, even the submission of metadata is optional (Clement 2013). For the purpose of this study, however, these concerns are irrelevant. Citations, metadata, and, in most cases, full text were available in the database for all 13 institutions.
ProQuest subject headings for each discipline were identified using the "subject search" feature (Table 1). Optics and acoustics were excluded because they did not appear in the subject search.
Table 1. Relevant ProQuest subject headings.
| Disciplines | ProQuest subject headings |
|---|---|
Chemical engineering |
Chemical Engineering |
Chemistry |
Analytical Chemistry, Atmospheric Chemistry, Biochemistry, Biogeochemistry, Chemistry, Geochemistry, Inorganic Chemistry, Molecular Chemistry, Nuclear Chemistry, Organic Chemistry, Physical Chemistry, Polymer Chemistry |
Mathematics |
Applied Mathematics, Mathematics, Theoretical Mathematics |
Physics |
Astrophysics, Atomic Physics, Biophysics, Condensed Matter Physics, Geophysics, High Temperature Physics, Low Temperature Physics, Molecular Physics, Nuclear Physics, Particle Physics, Physics, Plasma Physics, Quantum Physics, Solar Physics, Solid State Physics, Theoretical Physics |
In order to determine the sample size of dissertations selected from PTDAI for each discipline, the following formula (Yamane 1967, 581) was used:
![[Formula]](refereed3-img1.png)
In this formula, N represents the number of dissertations meeting the search criteria, while n is the sample extracted from this population. A 5 percent error rate (e) was selected because that allows a high level of confidence (95%) in the results while keeping the sample size manageable. It is also a "commonly used strategy" (Utts and Heckard 2007, 79).
Unfortunately, only chemistry had a total population large enough to use this formula. For the other disciplines the total population proved to be small enough that the calculated sample included over half of the total number of dissertations. In this situation, if “50 per cent [sic] of the population is taken, the sample will give more than the required accuracy” (Yamane 1967, 582). Once the sample sizes were determined, a random sample of each population was generated using systematic sampling (Carpenter and Vasu 1978, 32-34). Table 2 lists the populations and sample sizes.
Table 2. Population and sample sizes by disciplines.
|
Chemical engineering |
Chemistry |
Mathematics |
Physics |
Total |
|---|---|---|---|---|---|
Total population (N) |
165 |
639 |
218 |
343 |
1,365 |
Sample size (n) |
85 |
250 |
110 |
175 |
620 |
The next step involved searching the USPTO Patent Application Full Text and Image Database: AppFT. This study was limited to U.S. patent applications, since not all countries publish them. Search statements included the authors of the dissertations included in each sample population and were limited to filing dates from January 1, 2008 to December 31, 2010. If the search retrieved too many records to examine individually, keywords that might be present in the abstracts, claims, and descriptions were added to narrow the search.
To obtain information regarding the number of embargoed dissertations, the author contacted each university by e-mail or telephone in summer 2013. The initial contact was made using information the University provided on their dissertation submission web sites. In many cases this author was referred to other offices such as the library, the graduate school, or in one case, a university research foundation.
Data and Discussion
This project asked five questions. Unfortunately the first two, which concerned the number of embargoed dissertations and a possible correlation between those dissertations and patent applications, proved to be impossible to answer due to lack of data. Of the 11 universities that responded to inquiries, many had not converted to ETDs or were just starting to do so in 2008. Some did not retain the information after the embargoes expired. A few had data for 2008, but they either were not in an easily retrievable format or were incomplete, although most institutions were able to provide some information for more recent years.
The next question concerned the conversion rate of dissertations into patent applications. These decisions were subjective, because determining whether the description of an invention given in the dissertation fully described a particular invention or claim requires extensive subject and legal expertise beyond the scope of knowledge of this author.
The approach used for this study was to look for a strong similarity between the dissertation and the application. This usually involved comparing the abstracts of the dissertations with the patent applications, although in some cases the dissertation was also examined. Corroborating evidence included whether the degree granting institution or its representative was listed as an assignee and whether the dissertation advisor or committee members were also included as inventors. However, the presence of the university affiliated assignee, advisor or committee members were not, by themselves, used to establish the similarity between the two documents.
Most dissertations in the samples did not even meet this lower threshold. Consequently, the numbers in the subject specific datasets (Table 3) were low, thus limiting the analysis to descriptive statistics rather than more sophisticated analyses such as correlation tests.
Table 3. Number of dissertations with patent applications and the percentage of the sample that each represents.
|
Chemical engineering |
Chemistry |
Mathematics |
Physics |
Total |
|---|---|---|---|---|---|
Sample size (n) |
85 |
250 |
110 |
175 |
620 |
Number |
10 |
14 |
0 |
4 |
28 |
Percentage |
11.8% |
5.6% |
0.0% |
2.3% |
4.5% |
As might be expected, the more applied the discipline, the higher the percentage of dissertations producing patent applications. Mathematics produced none, while nearly 12 percent of chemical engineering dissertations yielded applications. The results from mathematics and physics were not surprising, since significant research areas in these disciplines are not patentable because they concern "naturally occurring matter, ... abstract scientific principles, mathematical formulas, and natural laws (algorithms) or ideas that don't produce a useful, concrete, or tangible result" (Stim 2012, 117).
Time lag between dissertation approval dates and patent application filing dates was also determined. These data may predict the likelihood of embargo requests, although without embargo data, this cannot be proven. Although patent applications include the exact filing date, most dissertations examined had only the month and year; therefore, the comparisons in Table 4 are based on the dissertation dates. Two dissertations provided only the year. This author was able to learn the month one was added to the institutional repository, and the other had an application filing date in a different year from the dissertation approval date. Therefore, these two anomalous dissertations could be included in the Table 4 results. Mathematics was not included, because it did not yield any patent applications.
Table 4. Relationship of patent application filing dates to dissertation approval dates.
|
Chemical engineering |
Chemistry |
Physics |
|---|---|---|---|
Applications filed prior to approval dates |
6 (54.5%) |
7 (31.8%) |
0 (0.0%) |
Applications filed in the same month as approval dates |
1 (9.1%) |
6 (27.3%) |
0 (0.0%) |
Applications filed after approval dates |
4 (36.4%) |
9 (40.9%) |
7 (100.0%) |
Total |
11 (100.0%) |
22 (100.0%) |
7 (100.0%) |
These results suggest chemical engineering and chemistry dissertations are more likely to be patent-ready than those in physics at the time the dissertations are approved. Nearly two-thirds of the chemical engineering and over half of the chemistry patent applications were filed prior to or in the same month as the dissertation approval dates. All the physics applications were filed after the dissertations were approved.
The final question involved the ratio of patent applications to dissertations generating those applications. Based on the other results obtained in this study, it was expected that chemical engineering would have the highest ratio and physics the lowest; however, the opposite was true (Table 5).
Table 5. Ratios of patent applications to the numbers of dissertations generating the applications.
Chemical engineering |
Chemistry |
Physics |
|
|---|---|---|---|
Number of dissertations |
10 |
14 |
4 |
Number of patent applications |
11 |
22 |
7 |
Ratio of applications to dissertations |
1.1 |
1.6 |
1.8 |
Since physics has a significant theoretical component, this result was surprising. While it is possible physics dissertations produce more patentable inventions, it is more likely that some earlier chemistry and chemical engineering applications were missed. These disciplines had large percentages of applications filed before the dissertations were approved. It is possible relevant additional applications were filed in 2007, particularly if the dissertations were approved early in 2008. If this is true, then the ratios for chemical engineering and chemistry should be higher. A follow-up study of U.S. engineering dissertations approved in 2009 looked for applications from 2008-2011 and yielded data indicating a ratio of 1.5 patent applications/dissertation in chemical engineering (Davis, et al. 2014).
Conclusions and Future Directions
This project originally intended to study the relationship between dissertation embargo periods and filing dates of patent applications based on those dissertations. The results could possibly have reinforced the importance of publication embargoes to doctoral candidates seeking patents for their inventions. However, lack of data prevented this analysis, although future studies may be able to do so if they can access data provided by the institutions to ProQuest.
The MPEP notes "The claimed invention as a whole must be useful... [and] possess a certain level of 'real world' value, as opposed to subject matter that represents nothing more than an idea or concept, or is simply a starting point for further investigation or research" (USPTO 2014c). Most dissertations, even in STEM disciplines, do not meet this requirement. In this study, the more applied a discipline was, the higher the percentage of patent applications the dissertations in that discipline produced. Whether this theoretical/applied distinction could apply to other STEM disciplines cannot be determined from the results of this study; however, considering the MPEP quote above, it is very possible the distinction would hold true.
Even though dissertations from 13 institutions were included, the number of dissertations in each category was small. This study was the first of its kind, and the author was unaware of how many dissertations would contain patentable inventions. In hindsight, drawing samples from a larger population could permit exploration within sub-disciplines and highlight nuances not apparent in the broad categories used in this study. For example, a larger population might permit separating mathematics into theoretical mathematics and applied mathematics.
Another result concerned the time lag between dissertation approval dates and patent application filing dates. While the data appears to show positive relationships between the applied nature of a discipline and the number of patent applications based on the research in those dissertations, this relationship cannot be proven, since the data sets were too small to provide reliable correlation results.
The ratio of patent applications to dissertations was smaller for chemical engineering than for chemistry, and chemistry was smaller than physics -- exactly the opposite of what was expected. However, dissertations in chemistry and chemical engineering may have generated applications that were filed in the year before the dissertation was approved. More work would be necessary to confirm or reject this supposition; however, data from a follow-up study (Davis, et al. 2014) suggests this could have occurred.
The question of delayed-release of dissertations for the purpose of filing a patent application has implications for doctoral candidates, graduate schools, libraries, and others involved in the processing of dissertations. These data highlight the importance of allowing embargoes. With this information, librarians can seek opportunities to partner with other units within the university, such as graduate schools, offices of institutional research, and university research foundations, to educate graduate students and faculty about the issues related to the patent process and the significance of prior art in that process. Librarians can also contribute to discussions regarding the development or modification of policies and procedures surrounding the use of embargoes within their institutions. Ultimately this project reflects the tension between our professional commitment to open access to scholarly output and the needs of authors for temporary delays in making that same output available to the world.
Acknowledgements
I wish to thank the following people for their assistance, suggestions, and comments regarding this project: Ann Copeland, Angela Davis, Brandy Karl, Kimberli Kelmor, John Meier, Linda Musser, Eric Novotny, Robyn Reed, and Ann Thompson (all Penn State), Michael Furlough (HathiTrust), Lisa German (University of Houston), Rebecca Mugridge (University at Albany, SUNY), Alan Shay (Pennsylvania State System of Higher Education), Kate Veraldi (Northwestern University), and Michael Risch (Villanova University). My thanks also go to the people in the graduate schools, research foundations, and libraries of the CIC institutions who did their best to answer my questions regarding their dissertations and embargo policies. I also wish to thank the anonymous reviewers and the people who viewed my poster presentation for their comments. This was presented as a poster entitled "Converting Dissertations to Patent Applications: A Study in Four Disciplines" at the Association of College and Research Libraries Division, Science and Technology Section Research Forum – Poster Session on July 1, 2013, at the American Library Association Annual Conference in Chicago, IL.
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