Patent News Readers, Beware of False Claims


Joseph Schuman
March 6, 2014
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There is an unfortunate susceptibility among journalists to accept all academic studies as if they were peer-reviewed analyses of rigorously sifted empirical data. This has been particularly evident in coverage of patent policy, where public debate has been all but defined by bad numbers. (See this post.)

The latest evolution of this slippery slope of misinformation comes in coverage of an academic paper that gets around the need to use bad data -- and overcome any burden of proof -- by focusing on theoretical threats that don’t exist.

It is a simple tactic that requires more imagination than investigation: Offer a scenario that includes some basic undisputed facts, posit some over-the-horizon possibilities for misbegotten actions based on those facts, and then warn the public to avert the menace before too much harm is done. Critics or opponents can't find fault with data about actual harm when there's no data to dispute.

This is a storied tradition in politics that goes back millennia, and it’s an attractive tactic for academics whose work is used -- and at times explicitly created -- to push for new laws or policies.

Such is one of the latest papers to enter the national debate on patent policy: “Patent Trolling – Why Bio & Pharmaceuticals Are at Risk,” from Hastings law professor Robin Feldman and Nicholson Price II, an academic fellow at the Petrie-Flom Center for health law at Harvard.

(Quick aside: The authors do not define “patent trolls” in their study -- which uses the term interchangeably with “patent assertion entities,” “patent monetizers” and “assault rifle trolls” – other than to contrast them with “product companies,” companies that manufacture products derived from their patents. Thus all patent owners who don’t manufacture in this way, including small inventors, universities and other manufacturing companies, are considered trolls.)

The ominous implication of Feldman and Price’s thesis, their attempt, as they put it, “to sound the alarm,” is already drawing news media attention.

Yet Feldman and Price themselves acknowledge the lack of rigor in what they describe as “a ground-breaking study of the life science holdings of 5 major universities to determine if these might be attractive to these monetizers.”

“This was deliberately a light, rather than an exhaustive, search,” they write, a bid to identify the kinds of drug, treatment and diagnostic patents that “theoretically” appear ripe for trolls to acquire and abuse.

It was also a deliberate attempt, they acknowledge, to build support for the patent legislation working its way through Congress and in statehouses and proposals at the Federal Trade Commission to assert authority over the use of patents. And any worries the authors had about the “anecdotal evidence” compiled to bolster their thesis had nothing to do with the accuracy.

“In deciding whether to undertake this analysis, we lost sleep over whether the potential for harm outweighed the potential benefit. If reform efforts are not undertaken, our work could do no more than provide a handy road map for those who would follow,” they say. “However, with scattered anecdotal evidence suggesting that monetization is moving into biopharmaceuticals, life sciences trolling is predictable and in its infancy. If reforms are implemented before the problem proliferates, legislators and regulators could cabin the activity before it becomes deeply entrenched and too much harm occurs.”

Behind this zeal for change, this willingness to weaken patent protections that have incentivized American innovation for two centuries, is an ideology the authors don’t shy away from proclaiming: Patent rights aren’t rights at all.

“In fact, one of the authors has argued that patents themselves are best understood as an opportunity to bargain, rather than as a form of clear, definitive rights,” they write. “It is tremendously difficult to know what the language of a patent covers, and it can cost as much as one to six million dollars to find out through a patent lawsuit. Moreover, if a product company challenges a patent and loses, in addition to the litigation costs, the company could be facing enormous damages, and even the possibility that its product could be shut down entirely.”

You read that right. The authors view negatively even a court’s power to rule that one company has infringed another’s patent and should pay damages or have its infringing products banned from the market. The “exclusive right” over discoveries granted by the Constitution for a limited time to the inventors who made the discoveries does not, for Feldman and Price, exist.

This is not academic study. This is advocacy.

Advocacy is fine, when labeled advocacy. The aim of this blog is to bring truth rather than advocacy to the national discussion of intellectual property protection in as open, plain and clear a way as we can. But we acknowledge that our belief in the importance of patents is itself a bias. Anyone reading Patent Truth takes that into account.

And anyone reading the new study from Feldman and Price should take into account what it really is, and what the authors are trying to do.