Following my discussion of Professor Colleen Chien’s WSJ essay on “ignoring patent demand letters, Professor Chien pointed me back to her 2014 article titled Holding Up and Holding Out that served as the basis for the WSJ essay.
In the hold-out article, Chien explains that, although patentee hold-ups are a systematic problem, so are hold-outs where infringers refuse to deal.
In the abstract, Chien explains:
Patent “hold-out” is a term I use to describe the practice of companies routinely ignoring patents and resisting patent owner demands, because the odds of getting caught are small. . . . When large companies systematically “hold out” [patentees] have no choice but to work with efficient patent enforcers or “trolls.” . . . I argue that considering ‘hold-out” and “hold-up” together provide a more complete picture than focus on either story alone, and that doing so reveals surprising pathways to a better patent system – focused on the design, rather than the doctrine of patent law. Instead of trying to eliminate all technology patents, or to enforce all of them, we should try to price them appropriately and reduce the distortions they produce. Instead of trying to make patent law perfect, we should make it cheaper, more streamlined, and more equitable.
The Chien article particularly addresses the concerns that I had with WSJ essay, which is why I was surprised to see the completely different focus of that WSJ essay. I thought she had also changed course. According to Chien, the emphasis and framing in the WSJ essay were the result of heavy WSJ editing rather than any backtracking from her prior work. In particular, Chien noted that the title “do nothing” was not her selection of terms – she suggested at least an internal analysis, forming an opinion, an filing the letter away. In addition, Chien noted that the essay was geared towards small companies seeking self help, not on the oped page.
That is all-and-good. Unfortunately, tens of thousands of people read the one-sided essay while only a couple hundred have read the nuanced article.