Professor-to-Professor: You Are Wrong about Patent Reform

Earlier this month I posted a letter to Congress from a group of 51 law professors and economists suggesting that the empirical evidence shows that patents are actually serving as a deterrent to innovation because potential innovators are afraid of getting sued for patent infringement and that the rewards of patent reform “could be great.”  Now comes the response signed by 40 law professors and economists expressing “deep concern” that the aforementioned studies are “flawed, unreliable, [and] incomplete.”  I have copied the letter below.  Those of you following will note substantial similarity to the counter-post from Ted Sichelman who was instrumental in drafting and circulating this letter -Dennis

[Read the full letter with its citations]

*****

[To Members of the United States Congress:]

As economists and law professors who conduct research in patent law and policy, we write to express our deep concerns with the many flawed, unreliable, or incomplete studies about the American patent system that have been provided to members of Congress. Unfortunately, much of the information surrounding the patent policy discussion, and in particular the discussion of so-called “patent trolls,” is either inaccurate or does not support the conclusions for which it is cited.

As Congress considers legislation to address abusive patent litigation, we believe it is imperative that your decisions be informed by reliable data that accurately reflect the real-world performance of the U.S. patent system. The claim that patent trolls bring the majority of patent lawsuits is profoundly incorrect. Recent studies further indicate that new patent infringement filings were down in 2014, with a significant decline in non-practicing entity (NPE) case filings. Unfortunately, these facts have gone largely unnoticed. Instead, unreliable studies with highly exaggerated claims regarding patent trolls have stolen the spotlight after being heavily promoted by well-organized proponents of sweeping patent legislation.

Indeed, the bulk of the studies relied upon by advocates of broad patent legislation are infected by fundamental mistakes. For example, the claim that patent trolls cost U.S. businesses $29 billion a year in direct costs has been roundly criticized. Studies cited for the proposition that NPE litigation is harmful to startup firms, that it reduces R&D, and that it reduces venture capital investment are likewise deeply flawed. In the Appendix, we point to a body of research that calls into question many of these claims and provides some explanation as to the limitations of other studies.

Those bent on attacking “trolls” have engendered an alarmist reaction that threatens to gut the patent system as it existed in the Twentieth Century, a period of tremendous innovation and economic growth. Indeed, award-winning economists have linked the two trends tightly together, and others have noted that it is exactly during periods of massive innovation that litigation rates have risen. We are not opposed to sensible, targeted reforms that consider the costs created by both plaintiffs and defendants in patent litigation. Yet, tinkering with the engine of innovation—the U.S. patent system—on the basis of flawed and incomplete evidence threatens to impede this country’s economic growth. Many of the wide-ranging changes to the patent system currently under consideration by Congress raise serious concerns in this regard.

That these proposed changes to the patent system have not been supported by rigorous studies is an understatement. We are very concerned that reliance on flawed data will lead to legislation that goes well beyond what is needed to curb abusive litigation practices, causing unintended negative consequences for inventors, small businesses, and emerging entrepreneurs. It is important to remember that inventors and startups rely on the patent system to protect their most valuable assets. Legislation that substantially raises the costs of patent enforcement for small businesses risks emboldening large infringers and disrupting our startup-based innovation economy. If reducing patent litigation comes at the price of reducing inventors’ ability to protect their patents, the costs to American innovation may well outweigh the benefits.

As David Kappos, the Director of the Patent Office from 2009 to 2013, stated in 2013 testimony before the House Judiciary Committee, “we are not tinkering with just any system here; we are reworking the greatest innovation engine the world has ever known, almost instantly after it has just been significantly overhauled” by the America Invents Act in 2011. “If there were ever a case where caution is called for, this is it.” As Congress addresses this important issue, we hope you will demand empirically sound data on the state of the American patent system.

 

Sincerely,

Michael Abramowicz (GWU); Martin J. Adelman  (GWU); Andrew Beckerman-Rodau (Suffolk); David C. Berry (Cooley); Ralph D. Clifford (UMass); Christopher A. Cotropia (Richmond); Gregory Dolin (Baltimore); John Duffy (UVA); Richard A. Epstein (NYU); Chris Frerking (UNH); Damien Geradin (George Mason); Richard S. Gruner (John Marshall); Stephen Haber (Stanford Poli-Sci); Timothy R. Holbrook (Emory); Chris Holman (UMKC); Ryan Holte (SIU); Gus Hurwitz (Nebraska); Jay P. Kesan (Illinois); Zorina Khan (Bowdoin Econ); Anne Layne-Farrar (Northwestern); Stephen M. Maurer (Berkeley Public Policy); Damon C. Matteo (Tsinghua);  Michael Mazzeo (Northwestern Management); Adam Mossoff (George Mason); Sean O’Connor (UW); Kristen Osenga (Richmond); Jorge Padilla (Lexecon); Lee Petherbridge (Loyola); Michael Risch (Villanova); Mark Schultz (SIU); David L. Schwartz (Chicago Kent); Ted Sichelman (USD); Brenda M. Simon (Thomas Jefferson); Matthew Laurence Spitzer (Northwestern); Daniel F. Spulber (Northwestern Management); David J. Teece (Berkeley Business); Shine Tu (WVU); Polk Wagner (Penn); Brian Wright (Berkeley Ag-Econ); Christopher S. Yoo (Penn).

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

132 thoughts on “Professor-to-Professor: You Are Wrong about Patent Reform

    1. I did not sign either. I tend not to sign-onto these letters even when I am supportive. I’m not really a “joiner.”

      However, In this case I also have problems with both letters.

      On the one hand, the empirical evidence is not sufficient to show that we have a problem fixable by any of the proposed legislative reforms. But, on the other hand this letter seemingly asking for full proof before acting probably goes too far while, at the same time being somewhat self-contradictory. What does this even mean:

      “We are not opposed to sensible, targeted reforms [i.e., tinkering] that consider the costs created by both plaintiffs and defendants in patent litigation. Yet, tinkering with the engine of innovation—the U.S. patent system—on the basis of flawed and incomplete evidence threatens to impede this country’s economic growth.”

      1. I think the meaning is pretty clear. You know when the patent system wasn’t working was in the 1970’s. The great malaise. The patent system basically made it so either you innovate or you lose market share.

      2. > What does this even mean: “We are not opposed to sensible, targeted reforms that consider the costs created by both plaintiffs and defendants in patent litigation. Yet, tinkering with the engine of innovation—the U.S. patent system—on the basis of flawed and incomplete evidence threatens to impede this country’s economic growth.”

        Hmm – the context seems clear to me: “tinkering” is used pejoratively to mean adjustments that are unnecessary or unwarranted, as opposed to adjustments that are responsive to clearly identified problems.

        I agree that the difference is a matter of perspective… but so are terms like “patent abuse,” “troll,” “patent quality,” “abstract,” etc., and that hasn’t prevented a whole lot of action, right?

    1. That depends on what ‘prominent’ means. The other group is vastly more well funded and advertised. This is the old guard that has worked in the field and understands it.

      1. >>>Michael Risch (Villanova);

        I feel like this might be a convert from the Lemley followers. I think Lemley helped him get his job at Villanova, which is something Lemley has been doing a lot of.

        Risch posts on here and seems reasonable.

  1. Intended as a neutral question: both sides argue over whether “patent trolls cost U.S. businesses $29 billion a year”. Does the net cost of the current patent system matter, assuming that we are trying to promote an innovation-based outcome? Taking this to the extreme, if we design for maximum dollars produced by U.S. businesses, could we just eliminate the patent system and offer only one product from each class of goods that never changes or evolves.

    1. Does the net cost of the current patent system matter,

      Yes.

      And the current cost – of the system – is not the debunked 29 billion number, but instead is the budget of the Office that is entirely carried by user fees.

      Your um, taken to extremes, is a very (failed) communist planned economy.

      No thanks.

      1. Anon,

        I’m genuinely interested in this idea of yours. I take it you favor some sort of examination system. How would that work, in broad strokes?

          1. I am not in favor of a registration system.

            I have advanced the idea that a registration system would be an extremely less expensive system – for the innovation community that currently foots the bill for the examination system that has an annual budget in the Billions of dollars.

            I have written and described this alternative mode to highlight that those seemingly forever whining about the enforcement of patents – that less than 2% (far less if one accounts for the actual “universe” from which lawsuits may arise) – tend to disregard in their frenetic attempt to paint patents and the enforcement of patents as a “bad thing,” and that being sued for infringement “must be” because someone is “bottom feeding” or the like; and that all of this is because “patents are cheap and cheap patents must be the “lowest form of innovation.”

            For more details, check the archives, but in broad strokes, eliminate the Billion dollar support-1azy-examiner system and for a fraction of that expense, create a much better cross-referencing library-type catalog system for pure registration. Of course, this would require removing the presumption of validity, and the ensuing actual “examination” would be done in court by those most vested and interested – at that fraction of effort and instances for which it is required.

            1. Anon,

              The more I think about it the more I like your idea.

              So often it feels like what I do is sort of a waste. Argue back and forth with an Examiner only to have the same arguments again in post grant review or litigation.

              Why not just do as you propose? The danger I see, as I’m sure others have pointed out, is that this proposal opens the door to patent abuse. Register a patent, file a lawsuit.

              That said, there is already patent abuse and there are a variety of mechanisms to deal with this. Pleading standards, sanctions, and many others.

              I really like this idea, I’d be interested to see what people who disagree with the proposal think

        1. (s i g h)

          So you do not think that China has a patent system, eh?
          You do not think that China has been filing more patents than anyone else, eh?
          You do not think that China has been making their patents stronger while other seek to weaken patents, eh?

          Do you always try to have arguments with so little understanding?

    2. Net cost/benefit has to be very important because it essentially asks the question: is our society better-off or worse-off because of the patent system.

      In estimating net benefits, we would look generally for societal benefits associated with innovations and disclosures that were induced by the patent incentive. There are other patent benefits that folks have identified such as facilitating coordination of innovation and transactions.

      On the net cost side, we would generally think that the cost of lawyers and the patent system are all costs to society that we wouldn’t have to pay otherwise. In addition, there is the cost associated with the exclusive right — higher consumer prices for patented goods, exclusion of competing goods, and potential chilling of follow-on research.

      In thinking about these costs, we have to recognize that the absence of the patent system would not simply leave a vacuum, but other practices would emerge. Perhaps that involves more use of trade-secrets and binding contracts; perhaps we have more copying and lower consumer prices, etc. A realist would also recognize the tremendous political pressure to ratchet-up those regimes in the absence of patent rights. Of course, even in the absence of a patent system we would still have innovation because there are other incentives at play.

      All this gets further complicated if we think about the system dynamically because both the market and innovation build upon themselves and transforms over time.

      Your question regarding “one product” that never changes over time suggests that the alternative to a patent system must be a command-and-control, but I don’t think that is true at all.

      1. is our society better-off or worse-off because of the patent system.

        Another great question is: will our system be better or worse off if we continue on the present course where any twelve year old (or an equally skill-less bottom feeding patent attorney) can claim pretty much any new information-procssing “functionality” performed by a computer/robot and get a patent?

        Dennis: even in the absence of a patent system we would still have innovation because there are other incentives at play.

        OMG … the third rail.

          1. Not sure what type of glasses you have that can pull a nugget like that out of the dross – and I’m not sure that the trade-off of having such glasses is worth the “cultural” impact of a constant denigration of the profession and a clearly philosophical “bent” that seeks to ig nore (on a professed per se basis) the leading type of innovation in the modern world, but that’s your call.

      2. Dennis, it would be interesting to study how influential the disclosure function is in the real-world for different art fields. In my 20 years in software, both within my own companies and afield in others, I have never, ever, ever seen a dev team or product planner even think of looking to a patent database for ideas/useful building blocks/items to seek a license for. Never once.

          1. go Arthur I believe you. I would like to think the concept works in the way it was intended in SOME aspects.

            I have only been interested in this subject for three years. In that time, my views have evolved as I learned more. I will never know as much as anon or a practicing patent lawyer, but I surely can see that per se software patents are somewhere underneath virtually every modern problem in the system. They certainly are the engine of a giant, world-historic racket.

            That’s why I think a study on the use/value of the disclosure across art fields could be interesting…as another data point that per se software patent’s net costs far exceed their net benefits.

            1. They certainly are the engine of a giant, world-historic racket.

              And with such an attitude, is it any wonder why your learning is so limited?

            2. Martin,

              Just to expound a little. I tend to work in the ‘smelly’ arts. There, I work with several clients who have scientists (inventors) who closely monitory all new patents by their competitors. They then see if they can design around or if they can build off of the published patent.

              It really does work that way in some fields.

              1. Whether of not any particular field wants to make it work or not is outside the point of the system. Self-fulfilling destructive choices do not – and should not – create exceptions to a system.

        1. It’s amazing that you could fundamentally misunderstand the purpose of the patent system so badly. Nobody expects you, or your “dev team” or “product planner” to “look to a patent database for ideas/useful building blocks/items.” The point is: once the inventors of those “ideas” and “useful building blocks” file a patent application they are free to disclose the “ideas” and “useful building blocks” through other means, e.g. journal articles, products, services, etc., without jeopardizing their ability to obtain exclusive rights to their “ideas” and “useful building blocks.”

          Sheesh.

          1. AAA JJ you have shown IMO kittle understanding of software on a technical basis. Maybe you have some, but your comments suggest otherwise.

            Object code- the visible part of software- says little to nothing about the underlying syntax and organization. What people see in published software is all function, and virtually no structure, if “structure” even exists in a non-abstract sense.

            Nobody is looking in journals, articles, etc. for code ideas either. They surely look to social media and open-source, and how much of that content refers back to patented software?

            Why don’t you answer that for me?

            People talk to customers or create code to meet goals established by business or technical people looking

            1. “Nobody is looking in journals, articles, etc. for code ideas either.”

              I didn’t say that was the only place people looked. My point, which your are apparently too willfully obtuse to get, is that filing a patent application allows the inventors to disclose in any other way that they choose to without jeopardizing their ability to obtain exclusive rights. So your argument that “Well, gee Dennis, how influential is the disclosure function in the real-world because no dev teams are looking at patents” is pretty silly, as that’s not the point of the patent system. The patent system wasn’t set up to be the sole repository of ideas so that everybody would have to go read patents. It was set up so that inventors could file their app, get their filing date, pursue exclusive rights, and then disclose their ideas and inventions in any manner of their choosing.

              What do you not understand about that?

              And stop with the “software is different” nonsense. You ain’t special. Neither is your software.

              1. But my mommy said I was a very special snowflake?

                Nonsense my friend is thinking /suggesting software patents aren’t THE paramount problem in the patent system…

                Maybe you are unmoved, but a whole lot of others seem to be pretty agitated.

                1. Agitated without reason is the epitome of unreasonableness.

                  You quaff the anti-patent k001aid, and then wonder why your lips are so stained…(or more to the point, think that others without stained lips are somehow not “getting it”).

                2. I can certainly understand why you’re agitated. But whether “software patents are the paramount problem in the patent system” (whatever that means) is subject to debate.

                3. Martin, you seem to me to be a person that is not socialized. You tried to ignore patents and they bite you. Next time don’t ignore the system you live in and maybe it will turn out better. If you ignore cars, you will probably be run over, but that doesn’t mean cars should be removed from our society or serve no purpose.

          2. The Fundamental purpose of our U. S. patent system is: “To promote the Progress of Science and the useful Arts.” The means to do so is the time limited exclusive Right.

            The freedom to disclose by other than patent means is not the “purpose”– it is within the right granted. The quid pro quo requires disclosure, in the granted patent, in exchange for the exclusivity rights. The law requires full clear concise and exact enabling disclosure in the patent, does it not?

            The question can be restated to be about what and how patents actually disclose/teach, within and after the time period. After all, the mythical super empowered (*anon) POSITA is routinely reliant on his ever-expanding virtual wall of patents, for obvious reasons. We suspend disbelief, but this still has to be relevant in some way to a functional system.

            Your view is myopic, the system was not created for itself, and it involves more than granting patents. Critical examination of actual technology transfer vis a vis licensing are important issues of availability, economics and progress.

            1. system was not created for itself, and it involves more than granting patents.

              Of course.

              At the same time I am sure that you are aware that the “deal” is NOT just what “society”gets – a true balance is in effect.

              That’s why they call it Quid Pro Quo.

              Now once you understand that, then you can clearly see that more patents is always better – more patents means that BOTH sides of the bargain are getting what they deserve and that everyone wins – per that balanced deal.

                1. The thing with the ll’s is that your assertion is uninformative even though true.

                  Actually and ontologically true are the same thing as to what we meant — effective balance actually existing. Maybe sometimes, but in general we disagree. There is too much evidence that un balanced wheels of patent justice need truing. Micro and macro reasons, argued all over these places so we don’t have to now. This does not mean anti-patent.

                  No clearmore is betterconclusion is supported. As in all systems tolerance build-up, incompetence, and noise become pervasive, it is reasonable to expect a tipping point. A golden mean or right size (ugh) is not a bad thing, it could even imply a great deal of obvious incremental development, indicating actual technology transfer.

                2. Uninformative?

                  My multi-fractured persona friend, you are much too dour and uninspired from the “We_the_People” that symbolize the great can-do inventive spirit of this country.

                  There is indeed a very clear more is better conclusion that flows from the law itself. Your seeing only “tolerance build-up, incompetence, and noise becom[ing] pervasive” is indeed anti-patent. You fail to recognize that the best patent system has never been about being the perfect patent system, and the only way to reach your negative viewpoint is to discount the greater good still coming from an ever increasing use of the patent system.

                  Yes, more use does mean that more in a static number sense of imperfections are generated. But you make the critical mistake of looking at that number and failing to see that an even bigger number of good is produced, and that the static number of good will continue to out gain the static number of imperfect.

                  This is why it is critical that when the noise of “too many lawsuits” is heard, that the proper norming is undertaken to see whether or not a true problem exists because it is known – and indeed built into the system – that there will be imperfections, and it is NOT the static number of imperfections that matter (at all), but instead whether the rate of imperfections to the rate of good is steady or improving.

                  This is why it is a ridiculous and indeed harmful habit to want to focus on random bad patents and cry “woe is me, the sky is falling.”

                  Take a step back. Calm down. Renew your faith in the inventiveness of The People, and realize that in fact, more patents (properly earned) is always a good thing. Indeed, having a patent system for itself and with the Quid Pro Quo is the best symbol of We_the_People and our drive to be the best.

                3. We of this Great and Prosperous Land…
                  ha, multi-fractured, not sure what it means but that’s ok, we probably agree….because Popeye.
                  but dour and uninspired, ewwwww. Your inferences ain’t so accurate, we hope…how are you at facial recognition? Don’t answer that, it doesn’t matter.

                  Yes uninformative, a tautology. Not the linguistic kind that the watchspringer likes to blather about. Consider by law: the Quid pro Quo is met when a duly valid patent issues. (Would be is presumed met but for “duly valid”.) Anyway, even if or when underlying laws change that legal Quid pro Quo is still truly balanced because Law, and has no supporting argument, it’s of course true.

                  Like matters of fact and matters of law we can get confused. OJ is not guilty, right? There can be a better meeting of the minds via dialogue when “because the law is” and “the effect of the law is” is kept recognizable.

                  For another take on the proper scaling idea listen to Professor Crouches keynote speech from earlier today, around -2.10.

                  As creative and knowledgable People, we want much more of both invention and innovation. We are in the perfecting business by trade, it’s not that the sky is falling, but we do not see enough actual innovation and certainty. It’s not random bad patents, its systematic stuff that makes us cynical.

                  Progress indeed is in the rate of good increasing and the rate of harm decreasing more.

                  Stepping back isn’t a bad idea, though. Cheers.

      3. This type of “bottom-line” analysis was most likely NOT a part of the reasoning by the f0und1ng f@thers for so prominently including the power in the constitution, and it’s likely a bit over the top to think in a post hac manner of “not having patents at all.”

        Some of the benefits simply are not reducible to a present day monetary value precisely because the nature of innovation cannot be known a priori.

        Which small and seemingly minor facet of today’s innovations will become the shoulders that tomorrow’s greats stand upon? That type of value cannot be quantified, and is an aspect of “of course, we should have a patent system.”

        That being said, there is plenty of room for discussing the fine tuning of the system.

      4. “In thinking about these costs, we have to recognize that the absence of the patent system would not simply leave a vacuum, but other practices would emerge. Perhaps that involves more use of trade-secrets and binding contracts; perhaps we have more copying and lower consumer prices, etc. A realist would also recognize the tremendous political pressure to ratchet-up those regimes in the absence of patent rights. Of course, even in the absence of a patent system we would still have innovation because there are other incentives at play. ”

        Dennis do you really think it is more beneficial to the society for companies to use tradesecrets, binding contracts. These would be for perpetuity compared to patents which are for limited times. Even compared to copyrights which is literally for perpetuity compared to patents. They are not even published unlike patents. So work around does not come into picture. In fact each one has to re-invent the wheel because nothing is published. Really you think tradesecrets, copyrights, binding contracts will result in lower prices for consumers than patents? Can you cite a study?

        1. “even in the absence of a patent system we would still have innovation because there are other incentives at play”

          And may I ask what other incentives are at play. I will ask that you don’t hold a title to the land on your house – simply build a house (other incentives are at play – trust me!). Would you do it? Your house title is for perpetuity and all patents are for a limited times. You want pepetual rights to your hard earned money but when it comes to scientist you want them to work for free.

          Please specify what incentives. Try becoming a scientist. Invest in a few stocks that are at innovation and does not file patents. Put some hard earned money in it. And tell us what incentives you figured out! Just don’t preach while you become a lawyer and a professor and not one of your dollar is in innovation.

          1. Scientist,

            People invent new things for a variety of reasons, only some of them are because of patents and only some of them are even money. For one tiny example; in a lab I worked at: my boss continually came up with new and sometimes unorthodox methods to repair a complicated machinery.

            Why? Because we needed to fix the machine and couldn’t afford a new one! Had nothing to do with patents.

            I agree with you that patents can in some cases encourage innovation. But to pretend they’re the ONLY thing that encourages innovation is just silly.

  2. I find it interesting that law professors (on both sides) are concerned about “flawed studies” and lack of support.

    Law journals are one of the few fields where peer review does not happen as a matter of course (there are only a few journals that do any sort of rigorous peer review). Is it a surprise that there are allegations of “flawed” articles?

    Law professors (apologies to the ones that run this board in advance) have been getting away with passing work onto barely trained law students for years, unlike every other field. A pox on both their houses.

    To be clear, I’ll cite to the ones that I find persuasive (on either side), but I will not be surprised if they are later called into question.

    1. The other part of this too is law professors are often not really scholars anymore but profit centers looking for ways to make money.

      1. Night – I don’t know where you get this. The patent law professors that I know would all be making much more money if they had stayed in private practice. Do you have some information that the rest of us are not privy-to?

        1. Just personal experience of law professors wanting to pick up gigs on the side to make money. And, I think that Mark Lemley is a good example of someone that appears to me to more of a profit center than a scholar what with his start-up, litigation business, etc.

          And, I would point out that academia has been found to have been corrupted by money before. We have found that with climate, smoking, pharmaceutical research, etc. Here, what we have are companies that are spending enormous amounts of money in Washington and elsewhere that want to weaken patents. Google is number 1 in giving to Congress. Goldman Sachs is number 2. We have seen the type of power Goldman Sachs has with legislation. Google is spending more.

          I think given the history of money and academia that we should all be highly suspicious when professors start coming out with studies that support big corp political goals particularly when some studies are found to have glaring holes like not compensating for the joinder provisions of the AIA. Or papers by Lemley that have claimed ridiculous things like that software has no structure.

          I think the days when saying you are a professor gives you some kind of pass are gone. Any rational person in today’s world wants more. I am not saying there aren’t honest scholars out there, but given today’s environment and recent history, we want more than merely I am a professor.

          1. I’m not saying you’re right or that I agree with you (I think there are other motivations/issues that you’re not acknowledging).

            But assume for sake of discussion that you are. Wouldn’t peer review help with this issue? It wouldn’t solve it. But it would probably go a long way to helping limit claims of bias. Both sides getting paid off just cancel each other out when there’s peer review.

              1. Peer review would not help. Peer review is only good when the items being reviewed are scientific, such that one can scientifically determine whether the conclusions drawn by the paper are “right” or “wrong”. In law, there is no such thing as right or wrong.

                It would be like trying to apply peer review to discussions of politics. It’s not possible, as of course a Democrat reviewing a Republican’s paper (or vice versa) is going to completely disagree with the Republican’s position.

                Plus, peer review has many other problems, not the least of which is that publications going against whatever the current consensus is have an incredibly hard time getting published — your “peers” won’t even review them. A case in point is high fat, low carbohydrate diets, which were ostracized for many years and could not get published anywhere.

                Then, talk about monetary influence! Peer reviewed journals are some of the worst panderers to money ever seen.

                Peer review even in the best of circumstances isn’t a panacea, and peer review for something like law, where there is no right or wrong, would be impractical if not unworkable. The best we can do is have competing papers outlining contrasting views, and you’ll have to decide for yourself which paper is correct.

                1. Peer review is only good when the items being reviewed are scientific, such that one can scientifically determine whether the conclusions drawn by the paper are “right” or “wrong”.

                  So, for example, where a paper argues there is a particular cost associated with a system? Or where a “response” paper argues that there aren’t particular costs associated with a system?

                  I think you’re ignoring how much of legal research is now on things like economics, which has traditionally had peer review.

                2. PatentBob,

                  I largely agree – peer review at best reflects the norms of that peer group. If there is no “meritocracy” there to begin with, then all peer review can do is enforce the lack of such.

                  However, I will firmly disagree with you regarding whether or not law has a correct/incorrect aspect – especially statutory law.

                  There should be a clear distinction between advocacy for change and discussion of what the law means today – for rather obvious reasons. [pun intended]

                1. Night Writer,

                  Gen er al rule of thumb would appear to apply: when silly games are engaged instead of a simple straight answer, well, you have your answer.

                  (and this applies to ever-so-polite cheerleader types as well).

                2. Anon,

                  Honestly curious. What are your ‘real world’ credentials? You bring it up often enough, let’s hear what you’ve done.

        2. Easy Dennis. You seem to have forgotten how much real work private practice involves. The difference in pay is the difference in work.

    2. Jane, the concern I have is that startups are the source of what I call “true” innovation — innovation that only America seems to provide. We alone in the world come up with totally new technology.

      Big companies have no desire to invent technology to replace their installed base. They provide incremental advances.

      The rest of the world has a big company mentality for one reason or another — perhaps because they are culturally linked into aristocratic or bureaucratic systems.

      America is different. We are wild and woolly, with a spirit of adventure that no other nation has. We invent.

      Nurture this. Do not destroy it.

        1. I think Ned’s “true innovation” is the same as SCOTUS’s “real innovation” from KSR, which is distinguishable from SCOTUS’s “ordinary innovation” from KSR. Of course, what the difference between “real innovation” and “ordinary innovation” is SCOTUS didn’t bother to tell us in KSR.

  3. Is there any appetite for technology-specific “patent reform”? Or venue reform to get rid of the Eastern District of Texas as an acceptable venue for patent cases?

    The “troll” problem seems to consist mostly (admittedly not entirely) of electronics and software cases in the Eastern District of Texas. If one court and one class of opportunists are ruining the patent system for the rest of the country, perhaps the problem should be dealt with in a more focused manner. Or to put it differently, if the engine of innovation is leaking oil from a specific place, it might be easier and more effective to plug the leak than to redesign the whole engine.

    1. ED Texas is not the villain.

      Junk patents are the villain — software at the point of novelty in most cases. In others, broad functional claims.

      The PTO going back to the mid ’90s did not adequately examine software patents, and saw no problem with functional claims. The PTO simply caved in to their “clients.”

      But the primary villain in this story is a single court, and that court is not the ED Tex.

      Name that court.

      1. Ned,

        Respectfully, ED Tex is part of the problem. When they have rules that require essentially unlimited discovery into anything “relevant” without request, good cause, or considerations of the value of the case, and where discovery costs in PAE cases are disproportionately borne by defendants, you have a forum where PAEs can go and extract undeserved settlements knowing that a rational actor will settle rather than get to the merits (which is often impossible to do without “permission”).

        A PAE that has a junk patent can use these procedural rules to get money out of the true innovators that you mention above.

        1. Jane, I am not so sure the ED Tex is the focus of patent litigation that it is because of loose discovery rules. It was my understanding that the forum first became a magnet because it was where patent cases could get to trial quickly. Rocket Docket!

          Over time, the court’s judge because very skilled in patent law. I suggest the rate of reversal on the merits from the ED Tex is below the rate in other courts.

          Another reason for this location is to keep defendants out of their home district where local bias would favor the local defendant. The ED Tex does not like to transfer.

          1. Ned,

            Your argument would maybe be true if we could ignore all the settlements ED Tex generates. Do you think those settlements, if there weren’t procedural rules favoring those with junk patents that raise costs of getting to a merits decision, would be more or less likely? Would be more or less money?

            As I’ve mentioned before, an interesting study would be on the rates of settlement in ED Tex versus other districts, and an objective analysis of the strength of the cases. This would be difficult to do (for many reasons, first and foremost people disagree as to what is a “strong” and “weak” case). But focusing on the rate of reversal is the wrong metric. Junk patents don’t make it to appeal. The goal is to settle for undeserved money.

            1. Jane, consider that big lawfirms like to litigate — law and motion, and never want to get to trial. This way, they make money and do not get a bad reputation.

              It starts like this.

              Naive inside counsel: We were sued, what do you recommend?

              Big lawfirm: The patent owner’s case is weak, we can obtain a lower cost settlement/judgment. Recommend: litigate.

              In most districts, the case proceed for years. Discovery and lots of law and motion. Near trial, big lawfirm approaches the naïve inside counsel says, “The the cost trial plus the risk of loss argues that we should now settle the case.” Whereupon, the case is settled for approximately amount, or just a little less, than it could have been settled prior to the filing of the lawsuit. The total cost to the company is higher than had they settled in the first place.

              I have seen this pattern repeated time and again. I have talked district court judges who affirm that this is a standard operating procedure for big lawfirms.

              The problem that the Eastern District of Texas brings to this pattern is it is rapidity to trial. Trial – an actual trial – is not what the big law firm wants. Thus they do everything in my power to get out of the Eastern District of Texas into a friendly district that would allow it to litigate leisurely and expensively until it is time to call for an settlement.

              1. Honestly, Ned I don’t think this is the case anymore. Law firms that operate with this model won’t get a lot of business. In addition, a lot more in house counsel are savvy to this type of practice.

                I think though, the easiest rebuttal is that if this is the reason people don’t like Texas (too fast to trial) and it’s a result of law firms praying on unsophisticated clients, why do big companies which presumably don’t have the unsophisticated clients ALSO want to get out of ED Tex? Your model can’t explain that.

                1. Anyone who can, would normally like to litigate in their home district.

                  But trust me, if San Jose becomes a rocket docket and a case is filed in, for example, Delaware, counsel will not want to transfer to San Jose even if it is there home turf.

                  BTW, we recently had trial scheduled in San Jose a year and half after commencement. San Jose also has very good patent rules, experienced judges/magistrates who try a lot of patent cases and where patent owners win jury verdicts because the populace is pro-patent.

                  If this trend continues, San Jose will become a forum non grata, even for Silicon Valley defendants.

                  As for sophisticated inside counsel, well bully for that. The only counsel who are really sophisticated are counsel who keep their clients out of court.

              2. Except Eastern District of Texas ins’t a rocket docket anymore, and hasn’t been for a long time. I’ve had many cases take 9 months to over a year to even get a scheduling order after the complaint has been filed and served.

                Jane’s explanation of E.D. Texas allowing plaintiffs to abuse discovery ratchet up costs on defendants and drive settlement is part of the picture. But honestly, the same is true in most jurisdictions. Another part of it is the perceived notion that the jury pool is extremely plaintiff friendly. Although, over the last few years, I’ve heard from more and more local counsel that this too has been changing.

                (By the way, on the timing issuing, this is in direct violation of Fed. R. Civ. P. 16(b)(2), which states that “[t]he judge must issue the scheduling order … within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared.” If I recall correctly, these numbers are being reduced to 90 and 60 in December of this year. I’m not sure what the point is. E.D. Texas — and D. Delaware — will just continue to violate the Rules.)

                1. Anonymous, I suspect then is that the forum remains a preferred venue due to educated judges and to just keep the defendant out of his home court if possible. With the patent owner only able to sue one defendant at a time, this is becoming harder to do.

      2. I’m pretty sure I can name the court, but I’m curious as to how/why you think it’s the primary villain.

        1. Mr. bystander — why?

          1. The court, even before Rich joined it, thought it knew patent law better than any other court — including the Supreme Court.

          2. Rich, a co-writer of the ’52 Act on behalf of the patent bar, had strong views as to what the Act was intended to accomplish. See, e.g., In re Bergy quoted in Diehr. His views dominated the CCPA and Federal Circuit so long as he was active.

          3. The combination of institutional arrogance and Rich and later Markey allowed the court to reshape patent law. The court largely ignored precedent from other circuits and also ignored any Supreme Court precedent prior to ’52.

          4. This lead to the overruling by Rich of numbers of well established cases of long vintage — cases that restrained patentable subject matter and functional claiming. One of his cases actually held that a product of nature could not be rejected under 101. We all know about State Street Bank. Ditto, the absurd dicta in Alappat that a programmed computer was a new machine — harkening back to his overruled opinion in Benson.

          5. All this placed the Federal Circuit into a mode of defiance of other circuits and of the Supreme Court. Rather than order, we had disorder and chaos in patent law for years, decades, as the Rich-lead court changed the established order and fought the Supreme Court tooth and nail.

          6. Only when the hundreds of thousands of junk patents began to emerge because of the Rich-lead court’s rulings did affected businesses rise up to call a halt. The Supreme Court has now responded in a number of cases.

          7. Whether the Federal Circuit will now become part of the process or continue its defiance is still to be determined. But the recent call by the BSA for the Federal Circuit to clarify 101 by overturning Judge Wu’s opinion tells you something about what the patent bar expects of that court — continued defiance.

          1. Ned,

            Just a somewhat related thought. I’ll give the pro-software crowd that the Alice test could be more concrete. Of course, I don’t believe that the ‘gist sword’ is unlimited. Part of the problem is that the litigated cases have not even been close to eligible. Hence no need to get into the weeds.

            That said, I think the SCOTUS hopes that the Fed. Cir. will develop the Alice test and flesh it out with good case law more definitely defining what meets each prong of the test. That is, of course, the Fed. Cir.’s role. However, I expect defiance which will require a few more 9-0s.

            I hope I’m wrong.

            1. Of course, I don’t believe that the ‘gist sword’ is unlimited.

              LOL – and “of course” you actually read the Court’s decision, and can give an explicit limit that the Court gave…

              I hope I’m wrong

              Such low expectations are easily met.

            2. go, the “gist” part is a very — all it seeks to do is identify in the claim subject matter that is ineligible and to summarize it.

              Regarding the Federal Cir., it cannot continue to fight the Supreme Court. Even Congress will then notice.

              1. Ned,

                I agree. Just, some here would characterize step 1 of Alice as too amorphous.

                As if, someone would provide a detailed description of a new mechanical pencil sharpener, describe the novel features in the claims, yet a court would just say “meh, directed to the abstract idea of using a hard, sharp surface to cut a softer, dull surface. Abstract!” and as if that’s somehow comparable to some of the junky patents we’ve seen here.

                1. Like this one…I like posting this week’s dud patents. Here’s my nominee, again related to social networks, from

                  1. A method for determining and displaying relationships in a social network, the method comprising the steps of:

                  a computer identifying within content displayed to a user, one or more terms within displayed application window text areas of at least two different types of computer program applications; for each of the identified terms:

                  the computer visually distinguishing the identified term in the displayed application window text areas;

                  the computer transmitting the identified term to one or more servers executing a social networking application;

                  the computer receiving from the one or more servers a list of people that correspond to the identified term;

                  the computer directing a display device to display the list of people that correspond to the identified term;

                  the computer directing a display device to display a mapping clipboard program graphical user interface;

                  the computer receiving input from the user of an identification of a person from the list of people that correspond to the identified term; the computer receiving from the user a selection of a mapping clipboard from a plurality of mapping clipboards;

                  the computer adding the identification of the person from the list of people to the mapping clipboard;

                  and in response to user selection of one of the people in the list of people that correspond to the identified term, the computer directing the display device to display a graph that shows how the one person and other people identified in the list are connected to each other in the social networking application, wherein the connections represent a friend, relative, colleague, present co-worker, former co-worker, or classmate.

          2. Ned, give me break. Rich made patent law work. The SCOTUS breaks it and the Fed. Cir. keeps trying to fix it.

            Want to fix patent law? Remove the SCOTUS jurisdiction from patent law.

            1. Now there is an idea!!

              Hmm, it even has its constitutional authority (and still maintains the proper Article III court review as necessary per Marbury).

            2. Night, “work?”

              Rich was an excellent patent attorney, no doubt. He really knew patent law well. But his views were colored by the ’52 Act and what he believed the Act was intended to achieve. You cannot deny that.

              As to making the system work, I expect you will find some disagreement there — particularly anyone who has been a victim of a business method patent.

              Some historian needs to tell the tale of the road to State Street Bank, and Rich’s role in 101 jurisprudence, and how that decision almost sank the patent system.

              1. He really knew patent law well

                Yeah, because he helped write it.

                And yet, you continue to seek to denigrate him and expect all to think that other-ends-philosophically-minded Justices “knew the law better.”

                Outrageous – just not how you think, Mr. Heller.

              2. You mean like the tale of the U.S. leaving the great malaise of the 1970’s and becoming the great innovation engine of the world because of patents? That tale?

  4. Kappos: David Kappos, the Director of the Patent Office from 2009 to 2013, stated in 2013 testimony before the House Judiciary Committee, “we are not tinkering with just any system here; we are reworking the greatest innovation engine the world has ever known, almost instantly after it has just been significantly overhauled” by the America Invents Act in 2011. “If there were ever a case where caution is called for, this is it.”

    And yet “Mr. Cautious” had no problem whatsoever when the PTO, at his direction, cranked out more junk patents in a shorter period of time than ever before in the history of the country — the root cause of runaway patent assertion and one of the key drivers of the patent reform that we are seeing.

    Mr. Cautious also couldn’t figure out what Prometheus v. Mayo was about and was sure that “103 was the right tool” for getting rid of such claims, in spite of the fact that the PTO had a perfect opportunity to use its preferred tool to get rid of Prometheus’ claims and it failed miserably.

    Mr. Cautious was fully aware of the fact that the Federal Circuit had gone on a relentless, shortsighted gleeful spree of crafting absurd decisions designed to create, protect and preserve patents that protect information and logic “on a computer” and responded by bending over backwards to help them.

    And what was the first thing Mr. Cautious did when he left the PTO, knowing that its ability and willfulness to examine design patents according to the law was effectively non-existent? Why, he promoted the shiny world of design patents from his fancy law office.

    But he’s a very serious person. You can trust him when he says that “caution” is super dooper important only when one’s ability to abuse and exploit the patent system is being curtailed. He really does care!

    1. Again, MM you are just emoting. Yes we all get that you think patents are unfair and don’t produce innovation. We all wonder if you are paid to think that and we all wonder if you have any data to back you up.

            1. What is his legacy, anon?

              Compact prosecution, delaying RCEs, pointless regional offices, positions on patentable subject matter that were not well taken at the Supreme Court, and of course, the AIA.

              Can there be a greater indictment?

    2. Interesting that this comment thread’s root originates with an article by 40 professors who decry unsupported work, yet, the comment to which I reply is nothing but unsupported hyperbole, e.g. “cranked out more junk patents in a shorter period of time than ever before in the history of the country” – no evidence ” and “the Federal Circuit had gone on a relentless, shortsighted gleeful spree of crafting absurd decisions.”

      1. unsupported hyperbole, e.g. “cranked out more junk patents in a shorter period of time than ever before in the history of the country” – no evidence ” and “the Federal Circuit had gone on a relentless, shortsighted gleeful spree of crafting absurd decisions.”

        Fifth grade math supports the first proposition. When you were you born? See: link to patentlyo.com; link to patentlyo.com

        The second proposition is supported by a series of fairly recent non-controversial 9-0 Supreme Court reversals of CAFC “precedent” that will have zero chance of being undone. And there is more to come. DDR holdings is poised for decimation, as is that ridiculous Promega case (both of these were authored by Judge Chen, if I’m not mistaken).

        Anyway, you’re welcome.

  5. I will note that this group represents some of the real academics in patent law. Adelman, Mossoff, Duffy, etc. These are people that write real case law books in patent law that are used throughout the world.

    These are people that should be listened to. I’d like to see a comparison as to where the different groups are getting their money. People like Adelman and Mossoff are great scholars and highly respected people.

    1. I will also note that I have not run across a single serious academic except for Richard Stern who thinks that Benson is anything but madness.

  6. “Now comes the response signed by 40 law professors and economists expressing “deep concern” that the aforementioned studies are “flawed, unreliable, [and] incomplete.””

    They should probably just come out and say that any study that supports those professors is obviously flawed, unreliable and incomplete.

  7. I notice a lot of the names on this letter are real attorneys that have worked in patent law. I would add one final sentence. Please ask the signers of the 51 to disclose their source of funds just as we are asking the climate change deniers to do.

      1. I think both sides should disclose where they are getting their money.

        I think that Google and other big corp. have made it clear what their goals are and are giving lots of money to achieve those goals, e.g. the FT article I posted a link to.

        But, I will also note that many of the names on this list are people that have been working in patent law prior to it becoming political, so let’s say prior to 1995.

            1. Maybe you are so quick on the comment trigger and so eager to make your little point that you fail to read the comment being replied to- but what’s context when your response is moored only to your agenda, which is apparently to prove how everyone is wrong, and you are right, about everything….

              So to be sure, Night wrote:

              <<>>

              1. Mr. Snyder,

                You misfire (again) – and badly so.

                The context of your comment that I am addressing – the “political problem” aspect – did NOT arise around 1995.

                You think that such arose at that time merely reflects your lack of understanding of the larger battle that has been raging for far far longer.

                My “little” point is not so little.

    1. “Climate change?” What does this phrase intend to mean — that all change is caused by man? One cannot seriously accept such a ludicrous proposition.

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