Missing patents?

A recent law review article by legal academics speaks of missing patents. These are patents which are issued, but are not licensed or litigated or otherwise used to make money.

The ability to be commercially successful is not one of the criteria analyzed by the Patent Office in granting a patent application. Whether or not a patent makes money is irrelevant to the patent bargain, which is (full disclosure) in return for (limited period to exclude others).

Issued patents are publicly available. They are not missing.

Patent agent Matthew Powell gives a nice, short description of the patent process.

-->from Matthew Powell

Patents can be thought of as a bargain between the patent owner and the public. That is, in return for a full disclosure of how to make and use a new, useful and unobvious invention, the patent owner receives the exclusive right to prevent others from practicing the invention.

The two-part form of the patent document reflects this bargain--a description and drawings fully describing the invention supports a claim or claims defining the exclusive right held by the patentee.