Guest Post by Christopher A. Cotropia, Professor of Law and Austin Owen Research Fellow, University of Richmond School of Law; Jay P. Kesan, Professor and H. Ross & Helen Workman Research Scholar, University of Illinois College of Law; and David L. Schwartz, Associate Professor and co-Director of the Center for Empirical Studies of Intellectual Property at Chicago-Kent College of Law
Harlan Krumholz, one of the nation’s leading medical researchers, recently wrote an important New York Times Op-Ed piece called Give the Data to the People. Dr. Krumholz praised Johnson & Johnson for making all of its clinical trial data available to scientists around the world. This included not only the conclusions in published articles, but also unpublished raw data. Companies are often reluctant to share raw data because their competitors may benefit. In the medical field, there are also patient privacy concerns. But releasing the raw data permits other researchers to learn from and build upon existing data. It also offers other researchers the ability to replicate and verify the findings of important medical studies. Dr. Krumholz concludes: “For the good of society, this is a breakthrough that should be replicated throughout the research world.”
We believe that Dr. Kumholz’s call for more publicly available data is applicable to empirical legal studies. It is especially critical, in our view, to the study of patent assertion entities (“PAEs,” which some refer to as patent trolls). There is an important public policy debate underway about the role of PAEs within patent law. There have been reports in the press about PAEs – including a high profile report by the President’s Council of Economic Advisors
– that relied upon confidential data. In his State of the Union address, President Obama called on Congress to enact patent reform legislation. The main basis for the reform is alleged abuses by “patent trolls.” Unfortunately, much of the raw data about patent litigation is not publicly available.
As academic researchers, we are interested in data about PAEs. We have previously studied and written an article about patent infringement lawsuits filed in 2010 and 2012. Because of the importance of the debate about PAEs, we released the raw data from our study to the public (here) to permit others to evaluate and study. Others have downloaded and commented on our data to us, and we have gone back and verified particular classifications in some instances. We believe more publicly available data is necessary.
Why is more information about PAE litigation not public? After all, the underlying data relates to litigation in the federal courts, and thus does not implicate privacy concerns like in the medical context. However, most of the raw data has been gathered and coded by private companies. For-profit businesses legitimately desire to use the information within their business and to prevent competitors and others from using commercially valuable information. That said, we believe corporate owners should release as much of the raw data (not merely descriptive statistics) as they can. To the extent that the raw data is not released or shared, society should be extremely cautious before relying upon it to make important public policy decisions.
Perhaps more importantly, we call upon academic researchers to gather and release more data. The data should be gathered and released in a form most useful to others. For instance, there is a debate about the definition of a PAE. Some believe that it excludes original owners – for instance, universities and individual inventors – while others believe PAEs include any non-operating company. Ideally, the raw data should be coded and released on a granular level. That way, future researchers can analyze the data relying upon different definitions, rather than only the definition used by the original researcher.
In sum, we ask that other researchers release more raw data on PAEs, which will permit both robustness checks on the results, as well as future empirical research on the topic. The time for more transparency has come.