George Mason University Law Professor Adam Mossoff posted an interesting article on his blog yesterday about why it is important to look closely at the statistics when debating patent policy and reform. In his words, numbers can be problematic when presented independently and out of context:
“It’s the old rhetorical saw: If actual numbers don’t make something look bad, then just reframe the point as an out-of-context statistical claim and now it sounds like a complete disaster that demands immediate action by everyone—by Congress, by courts, and, given that the season is almost upon us, by Santa Claus (who should punish these allegedly rent-seeking patent-owners with coal in their stockings).”
He further illustrates this point by using the number of patent-related filings at the U.S. International Trade Commission (ITC):
From 2003 to 2009 (fiscal year), patent filings in the ITC increased from 19 to 29. In the ten years from 2001 to 2011, patent case filings in the ITC went from 29 to 70. (Note the drop between 2001 and 2003, a drop that has occurred again and to which we will return shortly.)
While both statistics demonstrate an increase, they don’t tell the whole story in that there were some years that experienced declines in the number of cases filed. In addition, compared with the total number of patent infringement cases in the federal court system as a whole, Mossoff argues, it hardly warrants a demand for immediate congressional action to impose a regime change on patents:
In sum, we’re supposed to be filled with shock and awe by the 70 patent cases that were filed in the ITC in 2011, as compared to the 3,605 cases filed in federal court…To put it bluntly, people are getting their patent policy knickers in a twist because 1.94% of total patent infringement cases are also being filed in the ITC. Yep, fun with statistics.
Mossoff also points out that the most recent year’s statistic, where the number of patent related cases dropped from 70 in 2011 to 48 in 2012 – possibly because the facts do not fit the policy narrative for some:
In the statistical terms loved so much by the critics of patent filings at the ITC, patent filings dropped by 31.4% between 2011 and 2012 (fiscal years). Now that’s an interesting statistical number about which much could be said — or, as is the case, not said and ignored in the hope that it’ll just go away.
Mossoff’s view demonstrates why those monitoring the patent debate should be extra mindful of the statistics that are being presented in this ongoing conversation.
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