Sloppy, Misleading Yale Paper Challenges University Patenting

By Bob Zeidman
July 15, 2014

Professor Brian Love

Last March I attended a conference at the Stanford Law School entitled “Patent Trolls and Patent Reform.” From the title, the agenda of the conference was evident, so it was no surprise that the majority of professors who presented papers found that patents were bad. They cost society money, they stop the free flow of information, they make undeserving people wealthy, and they suck resources from legitimate businesses. Research done by these professors from elite universities around the country explained why patents, and those who license or litigate them, had made the United States such a plodding, backward nation that is desperately trying to catch up with progressive countries like China, Russia, and Europe. Fortunately, a few professors actually did support the U.S. patent system, and their research did too.

However, by far the worst paper at the conference was one entitled “Do University Patents Pay Off? Evidence from a Survey of University Inventors in Computer Science and Electrical Engineering” by Professor Brian Love at the Santa Clara University School of Law. I have just learned that this paper is soon to be published in the prestigious Yale Journal of Law & Technology. The paper supposedly made the case that “university patent programs earn a negative 3.5% rate of return on high-tech patents.” Professor Love explained that filing and licensing patents was a losing proposition for universities despite the recent $184 million jury verdict for Cornell against Hewlett-Packard and the $1.5 billion judgment for Carnegie Mellon University against Marvell Semiconductors.

There are three main reasons that the paper is a ridiculous example of how our universities are putting out “research” that is terribly shoddy, detached from the real world, and simply reinforces generally faulty assumptions about how the world works.

First, Professor Love sent out only 2,387 questionnaires to tenured and tenure-track faculty members at select elite universities. This is a miniscule .15% of the 1,565,504 professors in the United States as of 2011 according to an annual study by the U.S. Education Department’s National Center for Education Statistics. Of those, only 269 professors responded to his questionnaire.

Secondly, rather than relying on financial data that could have been obtained from university records and finance departments, Professor Love relied on asking simple questions of professors who have no particular access to that information. In fact, the questions were so simple that they were significantly ambiguous. In the paper, Professor Love states:

Of respondents whose research had been patented, about two-thirds reported licensing at least one of their patents, with the median respondent-licensor reporting that licenses to his or her patents have, to date, earned his or her university a total of $30,000 in royalties.

He then goes on to state in a footnote that anecdotal evidence from four different sources (yes, all of four individual professors) indicates that the royalties are actually even lower than $30,000 because the professors were confused about how to answer the question.

Professor Love’s report is misleading on this royalty number. When the information was presented at the conference at Stanford, one of the participants in the audience asked Professor Love whether the royalty referred to the share of the royalty that was received by the professor or the total royalty received by the university. Professor Love admitted that the question was not clear, but he had assumed this was total royalty to the university. The paper does not address this uncertainty but presents this $30,000 number definitively as royalty earned by the university. However, the actual question presented to professors, listed on page 50 of the report, is “[A]bout how much total licensing revenue have your university patents earned?” This question is sufficiently ambiguous to throw the entire study into question despite Professor Love’s ignoring an issue of which he was already aware.

Finally, the most significant, glaring problem is that one of the stated conclusions on page 2 of the study is:

[F]ifty-seven percent of professors report that they do not know how, or if at all, their university shares licensing revenue with inventors.

Yes, you read that correctly. Professor Love has concluded that universities do not earn returns on their investment in patents and at the same time concluded that more than half of all respondents to his survey admitted they do not know anything about what the survey was purporting to study. This was based on their answers to the simple question on page 50 of his report, “[D]o you know (without looking it up) what percent of the revenue you are entitled to receive?”

When I pointed out this last paradox at the conference, Professor Love shrugged off my query by responding that he simply asked the questions, the professors answered them, and he compiled the results. It was as if he were a laborer on an assembly line simply pressing buttons on a calculator but not responsible for the results rather than a highly educated professor attempting to understand how the world works and disseminate truth to his students and to the public. Another professor at the conference turned to me and explained, “Yes, but these results match those of most other university research” as if consistency in the models was more important than their ability to predict reality.

This paper by Professor Love should never have been presented at a conference at Stanford. It should not be published by any journal, let alone the prestigious Yale Journal of Law & Technology. It is sloppy, careless work like this that produces worthless published papers and incorrect theories and encourages academics to simply reinforce their own beliefs without requiring any form of review, replication, or confirmation. Professor Love should be embarrassed by this report. Santa Clara University School of Law should be embarrassed by this report. And Yale Law School should not publish this report. Unfortunately this will be published and it will be used to further reinforce arguments to “reform” the patent system and weaken intellectual property rights in this country.

The Author

Bob Zeidman

Bob Zeidman is one of the leading experts on intellectual property, particularly as it relates to software. He is the president and founder of Zeidman Consulting, a premier contract research and development firm in Silicon Valley that focuses on engineering consulting to law firms about intellectual property disputes. Clients have included Apple Computer, Cisco Systems, Facebook, Intel, Symantec, Texas Instruments, and Zynga. Bob is also the president and founder of Software Analysis and Forensic Engineering Corporation, the leading provider of software intellectual property analysis tools for use in forensic examinations. Bob is considered a pioneer in the fields of analyzing and synthesizing software source code. He has worked on and testified in over 150 cases involving billions of dollars in disputed IP.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 7 Comments comments.

  1. SJE July 15, 2014 9:32 pm

    If he wants to know the answer, why not ask the universities themselves? They track expenditures, licenses, and royalties very closely.

  2. step back July 16, 2014 6:52 am

    Hi Bob.

    I feel your frustration.

    Recently I ran across a short article by Isaac Asimov (the sci fi author):
    http://talentdevelop.com/articles/WIIA.html

    Reading it may help you understand why the overly-“educated” can be too smart for their own good.

    –And worse yet, too smart for society’s good.

    (In the land of the blind,
    the ivory tower dweller is …
    not above it all.)

  3. Joseph Zito July 16, 2014 8:03 am

    Makes me sad when academics care about their agenda instead of caring about attempting to research the actual facts. That is politics, not academics: state an opinion as if it is a fact, back it up with bad statistics, repeat it often enough, put enough agenda driven money behind it and it becomes a fact.

  4. Anon July 16, 2014 11:40 am

    (please feel free to clear the attempts and post but one )

    Joseph,

    I had the (fortunate?) circumstance awhile back (now, quite awhile back) to investigate a potential career in academia.

    I found that the lack of objective critical review, and the high level of subjective political review that is in place controlling the career advancements in academia to be oppressive and ultimately unsatisfying.

    I have seen that “world” and have chosen to avoid that “world,” not losing sight of what I have learned in my sojourn there.

    This is not to say that nobility is absent, or that worth cannot be found. Nobility does exist and worth can be found. But one who has seen the belly of the beast will not be one to simply blindly accept anything offered from that “world.”

    For example, in the particular instance of this thread the chaff exceeds the wheat, I have also worked with university transfer offices, and have found a stark contrast between “established academics teaching IP” and those other academics, not involved with teaching IP, but are involved in monetizing their particular advances. I am reminded of the Bayh-Dole act and quite frankly a vastly different “academic” mindset from the unbridled success as witnessed by that legislation.

    It is (or should be) no surprise to think that the “teaching academics” have long been captured by an anti-property group think, that serves first and foremost to propagate itself (and the lack of an actual meritocracy perpetuates this captured state). Talk to professors on the other hand not so captured in that groupthink, who are on the front lines of seeing the benefits of a strong patent system, and you will see progress.

  5. Anon July 16, 2014 1:33 pm

    test

    Joseph,

    I had the (fortunate?) circumstance awhile back (now, quite awhile back) to investigate a potential career in academia.

    I found that the lack of objective critical review, and the high level of subjective political review that is in place controlling the career advancements in academia to be oppressive and ultimately unsatisfying.

    I have seen that “world” and have chosen to avoid that “world,” not losing sight of what I have learned in my sojourn there.

    This is not to say that nobility is absent, or that worth cannot be found. Nobility does exist and worth can be found. But one who has seen the belly of the beast will not be one to simply blindly accept anything offered from that “world.”

    For example, in the particular instance of this thread the chaff exceeds the wheat, I have also worked with university transfer offices, and have found a stark contrast between “established academics teaching IP” and those other academics, not involved with teaching IP, but are involved in monetizing their particular advances. I am reminded of the Bayh-Dole act and quite frankly a vastly different “academic” mindset from the unbridled success as witnessed by that legislation.

    It is (or should be) no surprise to think that the “teaching academics” have long been captured by an anti-property group think, that serves first and foremost to propagate itself (and the lack of an actual meritocracy perpetuates this captured state). Talk to professors on the other hand not so captured in that groupthink, who are on the front lines of seeing the benefits of a strong patent system, and you will see progress.

  6. Bob Zeidman July 16, 2014 6:59 pm

    The Asimov article was interesting. I virtually minored in psychology (all the courses but never declared it). I took a course from Ulric Neisser, the “father of cognitive psychology.” He had a theory about intelligence with which I disagreed, but by the end of the course he had convinced me. I actually got a chance to write about it in an article in Software Test and Performance magazine. If you’re interested, see http://www.xndev.com/articles/stp-2008-10.pdf, starting at the bottom of page 18.

  7. Bob Zeidman July 16, 2014 11:01 pm

    Interestingly, I just listened to this radio broadcast about bad science by my friend Seth Shostak at SETI.

    http://bigpicturescience.org/episodes/Skeptic_Check_Check_the_Skeptics

    Definitely worth listening to.

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