Repetition of Junk Science & Epithets Does Not Make Them True

By Adam Mossoff
November 19, 2015

pinocchio-businessmanIn their recent submission to the Washington Post’s series on so-called “patent reform” and “patent trolls,” James Bessen and Michael Meurer repeat the same junk science claims we’ve all heard many times before. In fact, the essay starts with a sky-is-falling, clickbait headline: “A third of the economy is at stake – and trolls are to blame.” This continues the pejorative and misleading “patent troll” narrative that has been used to urge policymakers to weaken the property rights of all inventors through sweeping changes to our patent system. But repeating junk science claims and rhetorical epithets makes them neither true nor legitimate.

Even when discussing real facts, Bessen’s and Meurer’s essay leaves out material information. For example, they note that “[o]ver six times as many patent lawsuits are filed today as in 1980,” but as award-winning economic historian Zorina Khan has shown, the average litigation rate has remained relatively steady for over 150 years (because we must assess the number of suits as a percentage of the number of patents in force). And they certainly don’t mention that a number of studies have shown that the uptick in the number of patent lawsuits after 2011 was a result of Congress’s changes to legal rules for patent litigation in the America Invents Act of 2011 (see here and here, for example). Furthermore, they don’t offer any evidence that these lawsuits are frivolous, and there’s nothing nefarious about patent owners simply enforcing their property rights against infringers.

Perhaps the most misleading part of Bessen’s and Meurer’s essay is its implication that the debate is over—that the “preponderant economic picture” supports their call for curtailing patent rights. But they choose to discuss only part of the evidence. Yes, as they say, patent litigation imposes costs. However, this is true of every law—from traffic rules to contract laws to real property rights. As other scholars have cautioned, one should not draw policy conclusions from the costs of patent enforcement without considering either the costs of infringement or the benefits of enforcement.

More troubling is that Bessen and Meurer ignore a large body of contrary evidence, while their preferred evidence includes studies that have been widely criticized as unreliable. This past March, I joined forty economists and law professors in a letter to Congress expressing “deep concerns with the many flawed, unreliable, or incomplete studies about the American patent system” that have been injected into the patent policy debate. That letter cites dozens of studies contradicting the evidence that Bessen and Meurer continue to put forth.

Worst of all is that Bessen and Meurer repeat claims based on nothing more than junk science. And, unfortunately, Bessen and Meurer themselves have produced some of this junk science. For example, they once estimated that litigation by so-called “patent trolls” cost the U.S. economy $29 billion in 2011. This figure has been thoroughly debunked and criticized for its fundamental and methodological flaws, such as using secret, proprietary data collected by a company that has a stake in lobbying for more legislative revisions to the patent litigation rules.

Another serious problem with the “patent troll” epithet is that the people using this term play fast and loose with the definition, rendering any data or statistical conclusions ultimately hollow. For instance, in their infamous claim about $29 billion in costs from “trolls” in 2011, Bessen and Meurer adopt a very broad definition of what counts as a “troll,” gathering up as many people and institutions as possible, including individual inventors, universities, and even manufacturing companies that license other patents they may own. Also, as I have pointed out for several years in articles (see here and here, for example) and in congressional testimony, their definition condemns great innovators as “trolls,” such as Thomas Edison, Charles Goodyear, Elias Howe, and Nikola Tesla. This should give anyone pause before blithely accepting their conclusions.

But even worse, when it comes time to describe the characteristics of these supposed “trolls,” they then apply a very narrow definition, describing the worst of the worst bad actors. They use these outliers on the margins as examples, together with the unscientific conclusions that include far more legitimate patent owners, to imply that these outliers are in fact the norm. Why? For the purpose of pressing for systemic “reforms” that invariably toss out the baby with the bathwater, weakening the rights of patent owners across the board and threatening the American innovation economy that is the envy of the world.

Another fact that is not mentioned in their essay is that many of the people that Bessen and Meurer claim would benefit from so-called legislative “reforms”—such as small firms and startups and the VCs that finance them—are opposed to sweeping legislation that revises the patent system. The National Venture Capital Association (NVCA) and the National Small Business Association wrote to Congress this past summer opposing the overbroad patent legislation of the sort Bessen and Meurer support. These trade associations explained that the bills that were almost passed into law this year “would dramatically weaken intellectual property rights and undermine a patent system that is vital to incentivizing innovation and job creation in our country.” Bessen and Meurer lament the “decline of billions of dollars of venture capital investment,” yet the chair of the NVCA is on record saying that many of the “reforms” favored by Bessen and Meurer “will have a devastating impact on startups trying to enforce their patents against large incumbents and on small companies facing legal challenges by larger, well-financed competitors.”

On the one hand, unscientific surveys and studies infected with bias and other methodological and substantive flaws are appealed to by advocates for revising the patent system. On the other hand, trade associations that speak for the industry are consistently clear in their defense of strong patent rights and the harms to innovation that would be caused by the sweeping structural revisions being pushed by Bessen, Meurer and others.

Again, continually repeating the same junk science claims and the same epithets year after year does not make them true. Congress should not be fooled by misleading rhetoric and junk science. The patent system is too important for it to be changed on the basis of anything but sound policy rooted in data-driven, rigorous scholarship. If anything, the advocates for revising the patent system keep proving time and again that this is exactly what is missing from their arguments.

The Author

Adam Mossoff

Adam Mossoff is a Professor of Law at George Mason University. Professor Mossoff is a prolific scholar who writes on a variety of patent law issues. He is a co-founder of the Center for the Protection of Intellectual Property.

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 22 Comments comments.

  1. Gene Quinn November 19, 2015 5:31 pm

    Bessen and Meurer has lost all credibility. I rarely like to say that someone is lying, because there is almost always alternative viewpoints and nuances involved. Here I don’t know how you can conclude anything other than Bessen and Meurer are intentionally trying to mislead. What they have said has been repeatedly debunked yet they continue to find new outlets willing to push their lies.

  2. Night Writer November 19, 2015 5:38 pm

    What gets me about the academics is there is no accountability. They have put out statistics that are intentionally misleading. If this were a scientific paper, they might lose their job. Instead–nothing. And no acknowledgment from them of wrong doing. Bessen won’t be stopped until there is accountability. Until then, there will always be a market for his type of rhetoric. Harvard is to blame.

  3. David Stein November 19, 2015 7:16 pm

    @Night: People are inclined to scrutinize information that validates their beliefs.

    Just as the anti-patent movement picked up a lot of momentum by rooting in academia, a key factor to undoing the damage will be swaying academia. And one way of doing that is to generate studies showing the down sides of “patent reform”: reduced startup investment, a strategic shift from innovating to copying, an increase in secrecy, a sustained reduction in licensing and technology transfer, an increase in the costs of the patent system with a strongly biased effect toward small inventors (and academia!) – and the growing discontent with the state of § 101, even among judges.

    Adam’s study here is a good step in that direction. So are the other articles and interviews that have been posted here this week.

  4. David Stein November 19, 2015 8:30 pm

    (n.b.: s/inclined/less inclined/)

  5. Dale B Halling November 19, 2015 10:13 pm

    The amazing thing is no amount of empirical evidence will change these people’s minds or embarrass them. They are just like the AGW (global warming) priests

  6. angry dude November 20, 2015 12:12 am

    Those dudes who claimed that “patent trolls” caused 29 (!) billion a year damage to US economy ?

    Why not 30 billion or 35 or 45 ?

    The fact is this: if “patent trolls” obtained some money from operating companies, there is absolutely no way to know the exact amounts
    – all patent settlements are strictly confidential

  7. Erich Spangenberg November 20, 2015 6:33 am

    There is, of course, a reason that Bessen and Meurer have largely avoided peer reviewed publications. Their work would simply not withstand the scrutiny.

    One of the more entertaining displays in recent memory was approximately five years ago when Bessen was simply taken apart by Prof. Mark Shankerman of The LSE at a conference in Southern California. Bessen’s at best average intellect was fully exposed. It was apparent that this ersatz academic was out of his league and exposed as nothing more than the shill that he is.

    I would gladly sponsor the debate where Bessen and Meurer would spend an hour or so with Professors Shankerman and Mossoff. No moderator could save B+M.

  8. Night Writer November 20, 2015 7:03 am

    David @3>>to undoing the damage will be swaying academia

    I agree David. Holding academics accountable is another step in the right direction. Another step would be to identify the K street influence that Google is having. Things like reporting that Obama holds meetings with Google to approve Fed. Cir. appointments would be helpful.

    (But, let’s be real. To some of these academics it is a war against IP and they are judicial activist. They have no interest in rational debate. And the K street lobbyist have no interest in ration debate.)

    I agree that finding real numbers that indicate the policies to date are hurting innovation would help. The canary I’ve been calling for.

    But, let’s not be naïve. We need to understand what we are facing–it is huge and it is not stopping nor will it stop. Even if there are real numbers about how great patents are the big international corporations will still be paying people to “reform” the system and the academics like Bessen will still be preaching that IP is bad.

  9. Night Writer November 20, 2015 7:17 am

    @3 David, I agree. I have been calling for finding the canary.

    We cannot be naïve, though. The Googles are putting massive money into “reforming” the system. The academics like Bessen believe IP is bad as a matter of ideology. The corporations and academics like Bessen and Lemley are not going to stop no matter the data.

    I agree, though, that in many ways this is a PR game. Nor is this something new and different than what has been going in DC over the last 40 years.

    Nor is it new or only in this area that academics have gone wild. The administrations like Harvard now feel no need to hold their professors accountable. This has been well documented in other areas.

    The only reason the patent system probably has collapsed already is that it has the USPTO momentum. Anyway, don’t underestimate the resources behind the “reform.” The Google bucks are going to keep coming and coming and coming.

    You know as another example of holding people accountable, I think that paid bloggers should be banned or identified from the patent blogs.

  10. EG November 20, 2015 8:09 am

    Adam,

    Keep up the good fight. Bessen & Co.’s propaganda needs to be branded CONTINUALLY for what it is: disingenuous nonsense. Congress should be listening to you, Ron Katznelson, and others, not these demagogues.

    I can recall listening to an afternoon NPR program which was discussing the AIA (Abominable Inane Act) before it was enacted, and one of the last folks to talk was James Bessen. I was completely appalled at the slanted and biased views expressed by Bessen’s. In fact, I sent a scathing comment to NPR, criticizing them for offering a program so biased and unbalanced on a public radio station. (And I have supported NPR in the past, but no more.)

  11. Night Writer November 20, 2015 9:11 am

    >>I was completely appalled at the slanted and biased views expressed by Bessen’s.

    The problem is that BU law school will do nothing. His credibility comes from being a professor and the school will take no action against him. You should be able to file a complaint with BU law school and they should investigate and if it is found he is intentionally misrepresenting the data, then he should be disciplined.

    I think the credibility these people are getting from law schools should end. (This is another part of documenting and holding people accountable.)

  12. Anon November 20, 2015 9:19 am

    Would it be appropriate here to ask if anyone has heard anything from the Executive Office (or from anyone internal to the Office) on the status of the long overdue reply to Ron Katznelson concerning the topic of “Tr011s”…?

    If I remember correctly, we are fast approaching the six month anniversary of the first response due date.

    Perhaps Congress should get involved and prod the President. After all, the topic does have real affect and seeing propaganda exposed for what it is should help everyone move forward with
    a) crafting appropriate legislation (Congress) – if needed,
    b) the courts “interpreting” existing legislation
    c) business entities engaged in fully legitimate practices concerning the fully alienable property right that is the patent right.

    We** seem to be more than willing to not hold to accountability not only those purported to be teaching law, but more importantly, those empowered to be enforcing law.

    **the “Royal We,” of course.

  13. Anon November 20, 2015 9:24 am

    Night Writer @ 9,

    Fully agree.

    If attorneys are to be held to a higher standard of ethics due in part to our intimate relation with the law and how our actions influence the law (which we are), how in the world is it not imperative that those who influence the law even more so (through teaching of attorneys, writing treatises, and amici briefs, and such), not held to an even more strict standard of ethics and accountability?

    I am truly astounded, saddened, and even sickened at what is permitted to pass from the academic world. This is not a matter of “exploring alternate views” for which I would eagerly allow latitude. This is naked policy promotion.

  14. Anon November 20, 2015 10:50 am

    Comment at 13 should refer to Night Writer’s comment at 11 (not @ 9).

  15. Pat Choate November 20, 2015 10:56 am

    Excellent analysis and useful links.

  16. David Stein November 20, 2015 12:03 pm

    Night @8:

    Law academia is actually heavily divided in their stance on patents. Check out the signatories on this letter (also including Adam Mossoff):

    http://www.ipwatchdog.com/2015/03/10/professors-urge-caution-on-patent-reform/id=55619/

    However, I’m increasingly convinced that rhetoric is getting us nowhere – these arguments can and will be won with actual data. Meurer and Bessen’s study, flawed though it is, has been (and continues to be!) trotted out by patent reformers simply because we don’t have any data to the contrary. Of course, that’s not to say that such data isn’t available – just that no one has put it together yet.

  17. Dan Wood November 20, 2015 12:44 pm

    The “Big Lie” lives. It has infected many areas of our society and culture and it thrives on nothing more than repetition. Does half the world accept such drivel… or is the percentage higher?

  18. staff November 20, 2015 8:32 pm

    ‘they note that “[o]ver six times as many patent lawsuits are filed today as in 1980’

    But the law has changed so inventors must now file separate suits instead of naming all their infringers in one suit. Previously one suit could include tens of infringers. Intentional or not, Bessen and Meurer are misleading. Who paid for their study? Often large corps do so -the same large multinationals who have been robbing inventors blind for several years.

    All this patent troll and ‘reform’ talk is mere dissembling by China, huge multinational thieves, and their paid puppets. If you tell a lie often enough and can dupe others to repeat that lie, eventually it is accepted as fact. As Mark Twain said, ‘truth is not hard to kill, and (that) a lie well told is immortal’. Those who use the amorphous phrase ‘patent troll’ expose themselves as thieves, duped, or doped and perpetuate the lie. They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. For the last several years now they have been ransacking and looting small entities taking everything they can carry. Meanwhile, the huge multinationals crafting these lies ship more and more American jobs to China and elsewhere overseas. When they cant export jobs, they import workers.

    For more information please visit us at https://aminventorsforjustice.wordpress.com/
    or, contact us at tifj@mail.com

  19. Night Writer November 21, 2015 9:58 am

    David@16. I agree David that some academics acknowledge the value of patents. I took classes from a couple of people on that list. That isn’t the point. The point is that the “other side” is presenting their facts in an intentionally deceptive manner. I am talking about accountability and ethics. That is at the core of the problem.

    For example, Mark Lemley said in a paper that software has no structure. He was not held accountable for that. He never apologized or retracted his statement. I read Mark Lemley’s paper on functional claiming and I think that the reference cites do not say what he claims they say.

    In fact, I think if a survey was done with the cite portions of Lemley’s paper (s) with a multiple choice question of what they cite that few if anyone would chose the cite for what Lemley has cited it for. I think his functional paper is unethical. I think it unfairly characterizes SCOTUS cases and intentionally misrepresents modern technology. I think he intentionally obfuscates patent law to achieve his ends. If Mark Lemley were held accountable then we would have a chance at some type of intellectually honest debate.

    (And, again, a simple thing that you could do is demand on the other blog that people that are paid to push anti-patent propaganda be identified and labeled.)

  20. Night Writer November 21, 2015 10:34 am

    One thing Adam Mossoff that I think would be a good paper is to show how technology companies have integrated patent/patent applications into their innovation engine.

    I have worked with many of the top companies Intel, Apple, Google, eBay, etc. As well as manufacturers of big equipment like mining equipment.

    The patent applications are very much there to incent the average worker to innovate. Typically, the question is have you done something patent application worthy? I see many thousands of people working hard to come up with patent worthy innovations for their companies. I also see vp’s talk about adding research money so they can double the number of patents they are filing.

    The way the likes of Bessen and Lemley speak about patents just has no correspondence with the reality I see.

  21. Night Writer November 22, 2015 9:15 am

    http://news.stanford.edu/news/2015/november/fraud-science-papers-111615.html

    So there is a paper on fraud in scientific papers. How about starting the fraud in the misrepresentations in law journal articles and the faulty cites?

  22. Anon November 22, 2015 11:02 am

    From the link:

    There is a fair amount of research dedicated to understanding the ways liars lie

    On some blog sites, this is more than evident.