Guest Post: What We Said (and Didn’t Say) in the Berkeley Patent Study

Guest Post by Robert Merges, Pam Samuelson, and Ted Sichelman

In 2008, along with Stuart Graham (now Chief Economist at the USPTO) and Robert Barr (Executive Director of the Berkeley Center for Law &Technology), we conducted the most comprehensive survey to date on startup companies and patenting in the United States. Funded by the Ewing Marion Kauffman Foundation, our survey reported results on the drivers of patenting, the role of patenting in startup financing and the innovation process, and a number of other important areas. We have described initial results from the survey (here) and in a follow-up article (here). We also posted a three-part series on Patently-O on the survey (here, here, and here).

Since the publication of our articles, a number of commentators have drawn bold—and somewhat contradictory—inferences from our results. Former Chief Judge of the Federal Circuit, Paul Michel, and CEO of Tessera, Hank Nothhaft, stated in a New York Times op-ed that, "[A]ccording to our analysis of the data in the Berkeley Patent Survey, each issued patent is associated with 3 to 10 new jobs." Yet, Harold Wegner, a patent lawyer at Foley & Lardner who authors a popular e-mail distribution, contends that the USPTO's position that "prompt patent grants will stimulate innovation" and thus "create American jobs" is "in direct conflict" with the Berkeley Patent Study. According to Mr. Wegner, "the Berkeley Study questions showed that for many high technology areas patent grants played no role or a minimal role in stimulating innovation." From this inference, he concludes, that "A fortiori, prompt patent grants would be irrelevant" to stimulating innovation and, hence, creating American jobs. And, finally, Ronald Katznelson, an independent inventor active in the patent reform debates, states bluntly: "The Berkeley study is typical of other flawed 'scholarship' on patents by academics. They ask the wrong questions of the wrong people and draw wrong and counterfactual inferences. … The question that startup CEOs should have been asked is 'who are your investors and can we interview them for their reasons to invest in your startup?'"

We're writing this post because, as authors of the study, we feel obligated to dispel these and similar misunderstandings with four basic observations:

  1. Our results solely concern U.S. startups. The vast majority of patents are filed and owned by established companies. More than half of all patents are awarded to foreign companies. Because U.S. startups use and are affected by the patent system in ways quite different from established and foreign entities, it is impossible solely from our data to draw conclusions about the general role of patents on innovation or jobs.
  2. Even limiting the issue of jobs to those of U.S. startups, there is no principled way to determine from our data whether or not additional patents lead to additional jobs, much less the number of jobs created by each patent. Granted, we reported the average number of employees, including the percentage of engineers, at our respondent companies. But to reason that these positions were the direct result of the respondents' patent portfolios would be to ignore a host of other potential factors (e.g., first-mover advantage, other IP protection, management team quality, etc.) leading to those jobs. And there is no sound way using our data to remove these other potential effects so as to calculate the impact of patents on jobs.
  3. It is misguided to conclude from our results that "for many high technology areas [executives reported that] patent grants played no role or a minimal role in stimulating innovation," that "prompt patent grants would be irrelevant" to stimulating innovation. First, as we said earlier, our study only applies to U.S. startup companies. Second, many executives—particularly those in the biotechnology and medical device industries—reported that patents provide strong or moderate incentives to innovate. In the very least, prompt patent grants for these companies would not be "irrelevant" to stimulating innovation. Last, our responses on the role of patents in the innovation process relates to the patent system as it is currently constituted. It could very well be the case that faster patent grants would significantly increase the role patents play in promoting innovation.
  4. Ron Katznelson's contention that our study is typical of "flawed" academic scholarship—namely, because we failed to ask "who are your investors and can we interview them for their reasons to invest in your startup?"—overlooks several critical aspects of the study. First, before drafting the survey questions, we interviewed a number of investors informally and asked them "for their reasons to invest" in startups. (Unfortunately, our limited funding for this study did not allow us to conduct a large-scale survey of investors, but we hope to do so in the future.) Second, our survey specifically asked executives at startups to indicate whether their potential investors considered patents important to their investments. In this regard, our advisory board for the study included prominent venture capital firm partners, who worked closely with us in formulating the survey questions. As we explained at length in one of our articles (here), startups in all sectors we surveyed reported that patents were considered important by a sizable percentage of venture capital firms and other types of investors with whom they negotiated.

In the vein of our last observation, we hope that others will indeed read our articles (here and here, plus for background on the survey, see here) in detail and only report and rely upon the conclusions we draw in those publications. To make further inferences, especially without access to the underlying data in the study—which we cannot make publicly available due to confidentiality restrictions—will almost invariably lead to conclusions that are simply not supported by our data set.

In sum, we are grateful for the extended discussion and use of our study results—but, as the researchers who conducted the study—we hope that our results will not be stretched to unsupportable ends.

Robert Merges is the Wilson Sonsini Goodrich & Rosati Professor of Law at the University of California, Berkeley, School of Law. Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law at the University of California, Berkeley, School of Law. Ted Sichelman is an Associate Professor at the University of San Diego School of Law. Neither Stuart Graham nor Robert Barr played any role in the drafting this post.

41 thoughts on “Guest Post: What We Said (and Didn’t Say) in the Berkeley Patent Study

  1. Prompt patent issuance may be critical to the survival of these companies.

    More important than prompt issuance is clear and understood laws and solid true-quality examination.

    It makes no difference how fast an issuance is coming, if the surrounding case law changes what can be patented and the level of protection for items being patented changes and reexam entry rates continue to indicate that first time through examination quality is in the single digits.

    Clarity will do more to draw capital than speed (patent pending can be just as good as patented).

    Speed is a red herring. Faster crrp (as in faster crrp examination) is not a viable solution. Better and more solid examination, even at a premium of longer (but less game playing) prosecution time is what the country should be aiming for.

  2. I think big firms that have established market lines and competitive pressures keep them current do not rely on patents as a decision-making tool for hiring or firing.

    Drug companies require patentability before they even will invest in development of a new drug. However, because the tail end of the patent term is the most valuable portion of a drug patent, drug companies have no apparent reason to want prompt issuance of their patents.

    Startups require patents to protect their new ideas, and to draw investment capital. Prompt patent issuance may be critical to the survival of these companies.

    There may be other generalities than these. But what Wegner said about big companies on the whole is true. But it is not true in every case, and it certainly is not true of startups.

    I think Obama is right about a correlation between speed and jobs, but the correlation is only strong or certain types of applicants, and not generally.

  3. Harold Wegner, a patent lawyer at Foley & Lardner who authors a popular e-mail distribution, contends that the USPTO’s position that “prompt patent grants will stimulate innovation” and thus “create American jobs” is “in direct conflict” with the Berkeley Patent Study. According to Mr. Wegner, “the Berkeley Study questions showed that for many high technology areas patent grants played no role or a minimal role in stimulating innovation.” From this inference, he concludes, that “A fortiori, prompt patent grants would be irrelevant” to stimulating innovation and, hence, creating American jobs.

    As I’ve said before, “creating jobs” by tweaking the patent system is quite possibly the sxtuxidest of all possible ways that the Federal government can come up with to create jobs. The one exception would be providing direct funding to the USPTO to hire more hundreds of additional, highly qualified Examiners so everyone at the PTO could do a better job and stop issuing reams of jxnk every week.

    I laughed my xxx off when I hear Obama Admin and Congresscritters touting Patent Reform as part of their plan to get the economy moving. It’s a joke, on a national scale. But at this point, what else are they going to offer?

    The initial stimulus was far too small, and the elites in Washington would much rather talk about the deficit (who cares? nobody) and manufactured crises (e.g., the debt ceiling hostage situation created solely by Republicans) and those horrible “entitlements” (Medicare and Social Security, which the public overwhelming supports) than the long-term unemployment situation.

    Assuming the txxbxxger nxtjxbs and their conservative enablers continue to control the discourse in this country, get ready for more “austerity” and (as a direct result) much more pain and hardship unless, of course, you’re in the top 1% of wage earners in this country (like me).

  4. “I know you believe you understand what you think I said, but I am not sure you realise that what you heard is not what I meant.”

  5. Exactly Ned. I have worked with many start-ups and agree completely with what you’ve said.

    The problem with the “study” is it doesn’t distinguish between the start-ups that innovation driven and those that are not. Just examine a few of the really big tech companies and a good percentage of them innovated and used patents to protect their positions. In other words, the system worked.

    I know this criticism has been leveled against the authors, yet they have not addressed it. I think this is a good reason to question their motives. I think before they post further they should have to disclose all sources of money for their departments and persons.

  6. Taking things out of context are we?

    Yes, It is only propaganda when someone else is doing it.

  7. THE WALLET

    Where would we be if you couldn’t fold it.
    Where would we be if it had no where to go.
    Where would we be if you always had to hold it.
    Where would we be if he paid, we’d all know.

    Where would we be if the Wallet was not a trifold.
    Where would we be if you couldn’t even do that.
    Where would we be if they wouldn’t have let you.
    where would we be if it weren’t for the Cat.

  8. Great comments Ned. I second your assessment. What troubles me the most is the lack of any quantitative data which indicates the proposed changes will provide economic benefits to the US as a whole. (OMB where are you?)

    If I were to make one recommendation to address the USPTO backlog, it would be to throw out KSR v. Teleflex and establish TSM as the bright line rule for obviousness… no examiner retraining required, reduced appeals based on questionable combinations and more compact prosecution.

  9. Investors choose startups to invest in by the pitches they encounter. They dont investigate all avenues of the viability of the startup frequently witch causes faulty investment. They frequently dont investigate all options in Ip investment such as special order custom conception. Unfortunately this frequently leads to the old sinerio of a fool and his money are soon parted. The real trajedy is in the destruction of incentive to create that our primative corrupt and frauding patent system gives to indegent concievers and haveing a congressional commitee not comprised of top inventors means that only crimenal elements are influencing the the legislation and inventors voices are not herd creating more cival rights violations.

  10. Yes patents drive new jobs creation but unfortuneately not only when inventors file but also when theftors of inventors file.The new legislation promotes this theft by allowing those with the money to start up and the team to operate to win the race to the patent office potentially putting the correct inventor in danger of greedy thieves thus taking out top inventors and haulting all human advancement.

  11. True this bill is sick compared to what it could be If I had wrote it. Its wholescale fraud against invention concievers violating there cival rights and shutting down significant invention and job creation.I dont think its going to get past the supreme court they know when crime is in a bill.The number of significant marketable invention new products as already at a 57 year low 1/20th of previous years due to fear of the bill coupled with the uncorrected attrocities of the previous bill.This bill is economic stagnation by corruption at a time when we need integrity and incentive.

  12. Taking things out of context are we?

    Casual is right about the complaints that patent scope is vague and indefinite. The complaints are loud and often repeated. Even members of the Federal Circuit itself are questioning whether the Federal Circuit should be policing definiteness more.

    So, what is your complaint about what I said? Do you disagree that the Feds could do more, or do you disagree that most of us think that it could.

  13. I never said that it had no value.

    To be clear Curmudgeon, as old timers around these parts surely know by now, I’m a fundamentalist patent believer, or you could say a patent atheist. In other words, I don’t buy into the patent religion which swept the patent attorney community in the 80′s-today. You have some product you’ve been making? Some special machine? A method of making those things? Some special chemical? Sure, get you a patent. Tell us about it and add to the body of knowledge which we have. That’s value for us.

    Our system has been corrupted so that such is not the purpose, or “focus”, of the system anymore. It’s naught but a gimmick or outright snake oil in many fields. And it is halfway a gimmick in the other fields. No fking working model required, just send in your “conception” of the invention! Collect royalties when someone else takes the trouble to make it! Patents for artistic works of writing translated into machine code. Patents for seeds! Patents for bacteria! Patents for methods of hedging risk! Patents for signals! Patents for paradigms! Patents for clicking one time on a website to order something! Patents for user interface schemes! Unfuking believable! In any other context than the corrupt one of our government (s of the world) that is.

    If more everyday people knew about the patent universe and accompanying religion I could become rich simply making jokes about it.

  14. If you really don’t think that IP has any value, how can you justify yourself spending your life working in it?

  15. “before my company was sold to Motorola.”

    And promptly canabilized leaving the 40 people that had new jobs layed off.

    /golfclap.

    “Who can use such biased information and for what purpose? ”

    I think their point was that it was just a study, and you shouldn’t get all uppity about the potential for other people to mischaracterization their results as relating to investors’ perception of the importance of patents.

    That is, they just wanted to tell you to chillax toolface. Not everyone is looking to use their paper in such a fashion.

    Oh and they also said that they made a token effort to gather the data needed to write the paper you think they should have written, although they did not have money to do it well enough to publish a paper on.

    “Incentives to invent will occur whether or not patents exist. Patents are for reducing the risks in investing in inventions once they are made.”

    Ron, that’s your personal belief on what patents are for.

    “Worse yet, they convey the false impression that their empirical results are trustworthy, which they are manifestly not.

    Idk brosky, I think they are. And I also think that you admitted that what they reached by detailed analysis is apparent to you without doing research: “Incentives to invent will occur whether or not patents exist.”

    And policy makers should know that, because frankly, maybe they don’t want to prop up your business model.

  16. First, I note that the Berkeley Authors’ citation of my comments elsewhere mischaracterize me as an “independent inventor,” when my activities are in fact those which they have studied – startup entrepreneur/inventor having founded venture-backed technology companies and having created at least 40 new jobs before my company was sold to Motorola. It is because of my background in the startup community that I welcomed their efforts to study this little-understood segment of the patent user community. I also appreciate the large scope of their effort to identify, select and obtain such survey material from over 1,300 technology startups and much credit is due the Kauffman Foundation for supporting the study. My criticism, however, is of aspects of their methodology and particularly their sweeping conclusion that “patents provide relatively weak incentives for core activities in the innovation process,” in contradiction with patenting expenditure results on which they report. But they conveniently excise the portion of my comments pointing out the contradiction.

    Compare their text quoting my comment above to my actual comment to Hal Wegner’s patent newsletter, which in pertinent part said:

    [The Berkeley Authors] ask the wrong questions of the wrong people and draw wrong and counterfactual inferences. Whether patents are important or not is empirically exemplified by their finding that on average, startups spend more than $38,000 on getting a patent (Berkeley Study at 1311). This is more than twice than the average amount spent by other firms obtaining a patent.

    If “patents provide relatively weak incentives for core activities in the innovation process,” why does the average startup even spend scarce capital on patents? And why does the Berkeley paper contradict its statements elsewhere by explaining this high average patenting expense by positing that “startups often pay significantly more than incumbents because startups tend to file for patents on inventions that are more important to the company’s core business model than large firms.” (Id.) So which is it? Are patent important for startups or not? Clearly, the Berkeley researchers interviewed the wrong people.”

    The Berkeley Authors apparently have no response to my comment on the contradiction. Rather, in response, they argue that I “overlooked several critical aspects of the study,” explaining that their survey had actually asked company respondents about their investors’ patent-related motivation to invest. Contrary to their assertion, I have not overlooked this fact. I did comment that questioning company respondents but not their investors misses a fundamental point of the patent system. Having VCs on their advisory group might be helpful but it does not replace a survey of the actual investors in the companies they surveyed because the results are likely to be vastly different than their reported results. Indeed, the authors admit that by not asking investors directly, their results are likely biased downwards – underestimating the importance of patents to investors. (p.1309, note 178). This raises a question as to why the Berkley Authors would readily disseminate biased results that are prone to mischaracterization as investors’ perception of the importance of patents. Who can use such biased information and for what purpose? And if they do use it, would they bother to mention the fact that the data is not from actual investors and that the data is biased?

    As others commented here, the Berkeley Authors’ make unsupported ‘trust us’ proclamations such as “company executives report that patents provide relatively weak incentives for core activities in the innovation process, such as invention and commercialization.” p. 1261, 1263, 1283-1287. They inform us that their “questionnaire asked all respondents how strong or weak an incentive (1=not at all, 2=weak, 3=moderate, and 4=strong incentive) patents served for undertaking four innovation-related activities,” but show us no actual numerical results (such as those shown in Figures 1-4) of their findings nor the respective variances to enable an objective assessment of their claims. They claim finding “marked interindustry difference in the incentive values that patents offer for innovation” (p. 1286) but provide no numerical results of any statistical analysis that supports such claims. Is the “marked interindustry difference” statistically significant? We will never know.

    Why are they avoiding reports of simple averages, variances and sample size for each category of this “incentives” questionnaire? These reports are customary in any empirical study of this kind. Is it because their results will not stand up to basic statistical analysis scrutiny? ‘Trust us; we have the data but we cannot show it to you.’

    Even if the numerical findings of respondents’ subjective ratings on “incentives” were available, they would have been much less meaningful than objective quantitative indicia of the importance of patents to startups such as expenditures on procuring patents, on which the Berkeley Authors apparently have some data. These expenditures in the early stage of a startup are decided at the board of directors’ level, where the investors have a key role. These are meaningful measurable data points. Why do we not see analysis of this important objective data?

    The authors had specifically expected their findings to inform policy makers in patent reforms. (p.1260). By this flawed research, however, they have mischaracterized important aspects of the function of patents. Incentives to invent will occur whether or not patents exist. Patents are for reducing the risks in investing in inventions once they are made. The authors failed to question the key decision makers on undertaking the risks of investments in patentable inventions – the investors in these startups. Worse yet, they convey the false impression that their empirical results are trustworthy, which they are manifestly not.
    – Ron Katznelson

  17. Ned Heller, Aug 05, 2011 at 06:15 PM: “So stop it with the propaganda.

    Ned Heller, Aug 6, 2011 at 02:04 PM: “I was hoping the Supremes would take the Applera case. but they just denied certiori. That case involved the issue of claim definiteness. Most of us agree that what the Federal Circuit is giving us today is not sufficient.

    W

    T

    F

    PAY ATTENTION TO YOUR OWN WORDS

  18. Casual, I agree in principle, particularly with respect your point about vagueness and patent claims. I was hoping the Supremes would take the Applera case. but they just denied certiori. That case involved the issue of claim definiteness. Most of us agree that what the Federal Circuit is giving us today is not sufficient.

    The Applera case was denied certiori, but hopefully someone else will soon take a good case to the Supreme Court because something has to be done.

  19. If one more business mogul start up type talks about the importance of patents while never having read one my head is going to blow off.

    Without comment on the content of the study, I believe what you see here is what you see across the patent landscape – a lack of transparency. We can’t show you the data because of confidentiality, NPE won’t tell you what patents they own, license agreements are secret, then add patent strategies that lean toward deliberate obfuscation of inventions so you can collect royalties for at least the next 17 years in industries even where the technology changes every three to four years and you have an impenetrable fog where no one can navigate through the mess except of course $500-$800/hour patent attorneys and even they are buried.

    It’s time for transparency across the entire patent landscape – when you do your next survey wise and sagacious professors – figure out a way to provide the data to back up your findings, figure out how to get the message out to your readers. As one of the great patent litigators explained to me during an expert witness gig – remember you are going to be explaining soe of the most complex technology on the planet to the Bingo Ladies. Make sure they understand what you are saying. It is becoming increasingly important.

  20. “Thus, economic surveys based on their expressed IP economic opinions are essentially worthless. ”

    In other words, you guys can totally trust us that IP is important!

    I say…

    Gimme that ol’ time religion!
    Gimme that ol’ time religion!
    Preacher gimme that ol’ time patent religion!
    It’s good enough for me!
    It was good for the American children!
    It was good for the American children!
    It was good for the American children!
    It’s good enough for me!
    It was good for dad and mother!
    It was good for dad and mother!
    It was good for dad and mother!
    And it’s good enough for me!
    It will do when the economy is dyin’!
    It will do when the economy is dyin’!
    It will do when the economy is dyin’!
    It’s good enough for me!
    Gimme that ol’ time religion!
    Gimme that ol’ time religion!
    Gimme that ol’ time patent religion!
    It is good enough for me!

  21. I recall the presentation to patent attorneys I heard two years ago, from an IP-savvy VC high-up who was, before that, a professor of physics. For biotech starts-up, he agreed, patents are key. For all else, patents are no more than a comfort blanket.

    Without that comfort blanket, IP-unsavvy VC types are leary of investing. And precisely there lay his own business opportunity. Interesting, no?

  22. The authors do deserve credit for responding to the miss-use of their article by others and opening themselves to the kinds of attacks likely here.

    The admitted lack of funds to do a more thorough study, the people questioned, and the questions asked, seem to be flaws in most, if not all, studies of the economics of patents. Resulting in so many of them relying for “authority” on citations of seriously flawed academic studies and articles of others. At least these authors did try to do some original research.
    I thoroughly agree with comments that corporate CEOs or CFOs are often clueless as to the impact of their product’s patents or copyrights or trade secrets on their corporate bottom line, and naturally prefer to attribute increased profits to their personal marketing brillance. Even if they did know that their IP was very important in reducing their competition, they will be wisely advised not to admit it to anyone to avoid AT allegations. Thus, economic surveys based on their expressed IP economic opinions are essentially worthless.

  23. Scholarship in general, and patent studies in particular, are meant to be critiqued and their findings questioned and their methods and data probed.

    For such a study as this one, to be announced that any findings must be taken on blind faith, (“we hope that others will indeed read our articles… in detail and only report and rely upon the conclusions we draw in those publications“) is a waste of time. A waste of time for those the study is offered to and a waste of time for those undertaking the efforts of the study itself.

    You might as well agree to believe me that I have taken an exacting and exhaustive study that just so happens to support every one of my favorite premises and just so happens to disprove every premise that I do not agree with. Take my word – this is “true.” You cannot look at my underlying data and you must only report and rely on my conclusion I give.

    Trust me.

  24. I’ve been dealing with business people type folks for the last little while now, and they’re hilarious, they think IP is soooo important, but they don’t know what it is, at ALL.

    Was this on the same trip where you looked in the window of Stanford Law School? Or, by “dealing” with business people type folks do you simply mean that you asked them, “Would you like fries with that?”

  25. The PTO does need a few more good examiners like yourself.

    Yes, Examiners who can display the awesome crticial thinking to agree with Ned are needed in desparate quantities.

    The existing ones keep getting better paying jobs as geraniums.

    T O O L

  26. Oh that was the one where they were noting the difference between the PTO’s new use of 112 and the court’s use.

    I guess the Supremes just weren’t ready to take the case, and iirc I agreed with the gov. brief.

  27. “stop telling Americans that patent reform is necessary for jobs. It is not”

    Well, technically it is, but just not this patent reform lol.

  28. “And there is no sound way using our data to remove these other potential effects so as to calculate the impact of patents on jobs.”

    Oh now now, sure there is, it’s called Michel pulling something directly from a location which I will not mention. But it’s ok, because he only did it while preachin’ that ol’ time patent religion.

    Also I’m a bit let down that you guys didn’t feel the need to respond to my imminently influential comment on your studies. I believe, iirc, that I deemed them “lolable”. Is that true or not true? Is there no myth for you to dispel here?

    “First, before drafting the survey questions, we interviewed a number of investors informally and asked them “for their reasons to invest” in startups. (Unfortunately, our limited funding for this study did not allow us to conduct a large-scale survey of investors, but we hope to do so in the future.) Second, our survey specifically asked executives at startups to indicate whether their potential investors considered patents important to their investments. In this regard, our advisory board for the study included prominent venture capital firm partners, who worked closely with us in formulating the survey questions. As we explained at length in one of our articles (here), startups in all sectors we surveyed reported that patents were considered important by a sizable percentage of venture capital firms and other types of investors with whom they negotiated. ”

    Next time you guys do your improved survey of investors be sure to ask them, in a question right after or before the question about the importance of patents to their investing, what exactly a patent is. And when 90% of them don’t even have a clue what they are, be sure to report back to us so we can all lol. I’ve been dealing with business people type folks for the last little while now, and they’re hilarious, they think IP is soooo important, but they don’t know what it is, at ALL.

    In other words, patent folks spread the ol’ time patent religion right nice, except for the part where they tell the peoples that their god is not anything like what they’re imagining.

  29. So stop it with the propaganda.

    Sorry Ned – just as you cannot help yourself, so too, others cannot.

  30. Anyone who has spent any time in Silicon Valley, particularly those who have worked with Wilson Sonsini, knows that patents are very important for any startup business in new technology. That’s what we do here.

    Most startups pioneers, venture capitalists and IP practitioners who work for them are against the patent reform because it will harm startups, harm the bringers of new technology, and obviously harm the creation of new jobs.

    Both California senators are against the bill. Nancy Pelosi is against the bill. My own Silicon Valley congressman is against the bill. Anyone who knows anything about startups close up is against the patent reform bill.

    It is a bad bill, bad for startups, bad for jobs and bad for America.

    So, those of you who stand with the big firms, big U, and the banks, stop telling Americans that patent reform is necessary for jobs. It is not. If anything, patent reform is a jobs killer. While it might be good for you in because you are swatting the troll flies, it is not good for America as a whole. So stop it with the propaganda.

  31. Ugh! Cert. denied in Applera, a case involving indefiniteness. The Government recommended the denial of cert., noting there was no real conflict between the PTO and the courts on this issue given the two different claim construction regimes.

  32. Seems to me that you have a survivor bias problem. You interview small start ups with patents. Did you leave out the patents that never led to a start up?

    More importantly, what about the potential jobs foregone at other companies because of the transactional costs (finding patents and negotiating licenses) or restrictions and risks imposed by the patent system.

  33. I am glad that the authors took the time to write this clarifying blog regarding their landmark survey. I want to clarify my interpretation of their data. My understanding of the survey has been supplemented by discussions with some of the principles.
    “Paul Michel and I never said there was a causal relations between patents and jobs, nor did we mean to imply that you or any of the other the authors of the study did. We simply wrote that in our analysis of your patent study, we found an association of between 3 and 10 jobs with each patent held by a company in your survey. This was our opinion and analysis, not yours, and we happily stand by it.”
    I hope that you will invest the time and resources to do an update and expansion of your initial survey. I am certain that the additional insights would be as valuable or more so than the initial study.
    Henry R. Nothhaft Author “Great Again”

  34. To make further inferences, especially without access to the underlying data in the study—which we cannot make publicly available due to confidentiality restrictions—will almost invariably lead to conclusions that are simply not supported by our data set.

    In other words, trust us on making conclusions from data we won’t let you see…

    You will excuse me if I decline such a gracious invitation, because as we all know, academics never have an agenda to push.

    /off sarcasm

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