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Don’t Write About What You Don’t Understand


Written by Kelli Proia
Posted: July 1, 2013 @ 7:35 am
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To all the journalists, reporters, mainstream technology and business bloggers, and other well meaning but seriously misinformed writers:

PLEASE DO NOT SPEAK ON INTELLECTUAL PROPERTY MATTERS THAT YOU DON’T REALLY UNDERSTAND!

Before you decide to bash the United States patent system or teach Patents 101 in 300 words or less, please acknowledge your limited knowledge of the subject matter.   Please tell your audience that your article is only part of a much larger story that can’t be covered in a single column or blog post.  Above all, please do not encourage them to take actions that could have serious legal consequences.

You are telling an incomplete story.

What you don’t know, and what you aren’t reporting on, is an important piece that’s missing from mainstream media coverage of today’s intellectual property issues.  And that is a problem.

In your effort to spread intellectual property “truth” to the masses, you are doing the nation’s entrepreneurs, startups, and the business community -at-large a huge disservice.  Opinion is often mistaken for fact, and the number of real facts being reported is badly limited.  By telling your readers half the story, you are spreading myths, lies, and general untruths to unsuspecting business owners and entrepreneurs who WILL believe what you have to say.

Why will they believe you?

You are the only voice they hear.

Your readers don’t know what they don’t know, and 99% of them certainly are not researching the issue for themselves.

You see.  The vast majority of people reading your publications do not read legal publications.   They are not reading attorney blogs, journals, ABA publications, etc.  As much as the lawyers scream the truth, the general public is not listening.

Unless the attorney is offered a chance for rebuttal like Qualcomm’s GC Donald Rosenberg had last week when his letter, Patent System Isn’t Broken, was published in the New York Times.  In fact, he had written a previous letter to the New York Times on the subject last October.  Mr. Rosenberg did his best to refute the charges that have been handed down from journalists like Joe Nocera.

And he is not alone.   Many IP lawyers and general counsel, like Microsoft’s Chief Intellectual Property Officer, Horacio Gutierrez, and Jeffrey Lewis, President of the American Intellectual Property Law Association, have spoken out in favor of the system.   Even Gene Quinn here at IP Watchdog has addressed the criticism head on.

Unfortunately, even with exposure, the lawyers sound like the lone voice in the wilderness of absurdity.

Are people going to believe the corporate lawyer with a seemingly vested interest in the outcome of this discussion, or the “unbiased” journalist who’s just reporting the “facts”?  In the face of your overwhelming evidence, the lawyer can’t possibly be telling the truth.  (Please note the hint of sarcasm here.)

You have set the tone and the playing field on this discussion.

I honestly don’t understand the hostility with which you have approached this subject.  You’ve put the patent system on trial and have made yourself judge and jury.  You set out the ‘facts’ and dare the legal community to tell you why you’re wrong.  And for some unknown reason, I’m sure you would love to be executioner too.

You have obviously chosen a side in this war that you have created.

You have sided with Judge Posner’s opinion, not even considering what Chief Judge Rader has to say on the subject.

You branded the Smart Phone Wars as the best example of why the system is broken without even the slightest hint that this is how the system was actually designed to work.

You traded in on Apple’s cachet and the allure of Steve Jobs to spread the word.

You interviewed one or two unhappy business owners and you extrapolate that there’s a problem.

Where’s the interview with the patent attorney to give the other side of the story?

I understand that there’s nothing interesting in reporting that everything is working normally.  From a journalist’s perspective, it’s better to tell stories with good guys and bad guys.  However, you are creating wars and seeing problems that don’t exist.

For instance, you are shouting that patents stifle innovation, when in fact the number of patent applications filed is growing exponentially year after year.

And I’m sure you have witnessed the sheer pace at which technology is expanding.   You are even partaking of its bounty.  Most of the technology that is essential to our lives today didn’t exist a decade ago.  And more keeps coming every day.  Your examples of patents stifling innovation aren’t great in the face of reality, but for some reason they are effective.

Even the idea that patent litigation is on the rise doesn’t bear out against the fact that the number of patent litigations is declining as a percentage of issued patents.

It is difficult for lawyers to combat the amount of hostility generated from your journalism.

Lawyers don’t have your platform to speak on the issue.

Whether you’re talking about the “broken” patent system or simply trying to spread some general knowledge about intellectual property, and whether you are aware of it or not, you are the front-line of patent and intellectual property education for the general population.  You are shaping the discussion and national debate on intellectual property.

Please report responsibly.

With great power comes great responsibility.  Spend some time learning the law and the issues.  Talk to some patent attorneys.  Talk to some companies that are using the patent system effectively.   Learn about the real issues with the Patent System and how the IP community is trying to address them.

Remember that a disgruntled business owner is not an unbiased character witness.

There are winners and losers in every type of legal system, including the US patent system.  There are winners and losers in business.   Just because somebody lost doesn’t mean the system is to blame.

About the Author

2013 will mark 15 years since Kelli Proia embarked on her legal career as an intellectual property attorney, helping high tech companies understand their patents, trademarks, copyrights, and trade secrets.  She spent her first 8 years in practice working in-house at large companies in Massachusetts, where she helped her clients protect their IP, buy and sell over $2 billion worth of companies, and expand into new markets. She has advised clients in North America, Europe and Asia.  After a brief hiatus, Kelli founded a solo law practice in 2009.  Today, she helps high tech companies understand their intellectual property assets and get the most value they can out of them through 2 IP management and strategy programs: IP made simple for entrepreneurs and startups, and IP in focus for high tech companies


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Posted in: Guest Contributors, Inventors Information, IP News, IPWatchdog.com Articles, Patents, Technology & Innovation

5 comments
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  1. I wholeheartedly agree with this article – the public must be properly educated about patent law. Patent eligibility also needs to be greatly expanded, not reduced. If more things were patentable, technological innovation would explode in America. The ancient Romans and Greeks never had patents, so they never had any technological innovation. Why more people do not understand this simple notion is incredibly mind-boggling and beyond belief. This lack of understanding patents defies logic and common sense. The fashion apparel industry and food cuisine field do not have the benefit of patents, and consequently these industries never have any innovation whatsoever – These fields have been mired in stagnation for centuries due to the lack of patent protection.

  2. If journalists wrote only about that which they understand, my newspaper would be delivered daily with blank pages.

    From anecdotal evidence, any time there is a newspaper story about a topic that a friend is well acquainted with (be it a car accident or something more complex), the friend reports that the journalist’s article is full of mistakes.

    I don’t fault the journalists so much for that.
    They are under time pressure.
    Conveying knowledge accurately from one human being to another takes time and patience.
    Often a great deal of both.

    So no small wonder that the journalists can’t get right anything they write when dealing with the complex, overlapping and esoteric worlds of patents and technology (i.e. biotech, computers, etc.).

  3. Hi Kelli!!

    You make a lot of really good points and Good God above do I *not* want to get on your bad side, lol! However, here’s a few comments which may put me there anyway.

    “For instance, you are shouting that patents stifle innovation, when in fact the number of patent applications filed is growing exponentially year after year.”

    I must not be reading the same articles that you are because I think people have said that patent *trolling* has stifled innovation, not the actual patents themselves? Further, I’m not sure that I would ever equate innovation with the number of patents issued. Crustables, anyone? I don’t think that’s a direct relationship. Look at Elon Musk, going to space and all. No patents owned by his SpaceX company, yet he’s an innovator for sure!

    “Even the idea that patent litigation is on the rise doesn’t bear out against the fact that the number of patent litigations is declining as a percentage of issued patents.”

    This is probably true, I don’t know the numbers, but if it is it’s only because the number of patents has outpaced the number of patent trolls to the point that they can’t keep up and litigate all of them, lol! <— Only 1/2 joking.

    "I understand that there’s nothing interesting in reporting that everything is working normally. From a journalist’s perspective, it’s better to tell stories with good guys and bad guys."

    That's the start and end of it right there, no? Who wants to read about nothing going wrong? Seriously, that would be, like, the lamest blog ever. =)

    The bottom line is that patents are not easy to understand, and the whole system is just a complicated mess, rightly or wrongly. That's why we need people like you and Gene to tell the rest of the story!

    Cheers,

    Steph, IPTT

  4. When I was a kid I watched a protest against some government policy unfold from our apartment balcony. When I read the account of it next day in the paper, I couldn’t find a correlation between the report there and what I had witnessed with my own eyes. Ms. Proia is right to lament the reporting of patent stuff, but it’s par for the course with reporters in general. In that regard, we do need to educate the public about the importance of incentivizing innovation. It kills me when people suggest that drugs shouldn’t be patented, because anyone who’s every worked with drug developers knows that if there’s insufficient ROI, no one is going to bear the huge cost of bringing a new drug to market.

    On the other hand, hyperbole and outright falsehoods, such as statements that the Greeks and Romans didn’t innovate b/c they didn’t have a patent system, don’t help matters. Reality check: the Roman army didn’t get to be the dominant force in the world by using outmoded fighting techniques or technologies. The Romans completed building building projects, such as aqueducts with extremely shallow slopes, that rival or even surpass modern engineering achievements. But I don’t think any of us are hankering for a return to Roman society.

  5. With great freedom (of the press) comes great responsibility.

    (paraphrasing my Uncle Ben)