The Brookings Institution will hold a panel discussion today, December 13th, titled Advancing U.S. Innovation by Reforming Patent and R&D Policy. The policy forum, part of Brookings’ Hamilton Project for producing evidence-based policy proposals designed to promote economic growth, will supposedly look at current challenges caused by rules governing intellectual property and how current policy often impedes innovation rather than promoting it.
The trope that IP policy impedes innovation is heavily used among members of the efficient infringer lobby as they continue to call for further reforms to weaken the U.S. patent system while protecting their own vested interests. Calls for “balanced patent policy” to create a more level playing field come from entities such as the High Tech Inventors Alliance, a lobbying organization freshly minted this July to represent a collection of major tech firms who have pushed for legislation that would further undermine patent ownership in this country. They also come from panel witnesses appearing before committees of the U.S. Congress, some of whom give testimony which cannot be backed up by anything in the public record.
Unfortunately, there’s every indication that today’s event at Brookings will feature more of the same kind of misguided rhetoric on perceived issues with the patent system which don’t truly exist. The evidence for this starts with the moderator for the day’s final roundtable discussion, titled Realigning Incentives to Increase Patent Quality. The moderator for this discussion will be Tim Lee, senior reporter of tech policy for Ars Technica. Lee has written in the past on the effects of “ridiculous patent litigation” and has given space to viewpoints which want to limit patentability in certain sectors, such as in business methods. Lee has also been very critical of appellate court decisions in patent cases in recent years to the point that assertions he’s made on case law regarding the patentability of software inventions border on the ridiculously absurd. This individual, who has a clearly anti-patent viewpoint, will be controlling the discussion during the final panel roundtable on patent policy.
There is research out there which suggests that the world of tech media and news pushes subjective narratives more often than business or general news publications, further raising doubts as to whether Lee can sustain a principled discussion of U.S. patent policy as roundtable moderator. A media survey released this past summer by the Center for IP Understanding (CIPU) found that nearly 90 percent of news coverage on patent infringement stories which uses the term “patent troll” shows signs of high subjectivity, and tech publications like Ars Technica use the term twice as often as either business or general news publications. (Disclaimer: The author of this article is the main author/researcher of the CIPU media survey.)
Anyone who was hoping that there would be some balance among the various viewpoints contributed by the other panel participants would be sorely disappointed. One of the panel participants will be Edward J. Black, president and CEO of the Computer & Communications Industry Association (CCIA) since 1995. CCIA has regularly lobbied for positions which serve members of the efficient infringer lobby to the detriment of patent owners. They’ve publicly misrepresented the Federal Trade Commission’s (FTC’s) patent assertion entity (PAE) study released in October 2016, calling it a “patent troll study.” The language of the FTC’s own report contemplates the use of the term “patent troll” as prejudicial regarding the societal impacts of a particular business model of patent monetization, though that hasn’t stopped seemingly reputable news outlets like Fortune from making the same mischaracterization.
Other areas of the patent reform debate which the CCIA has attempted to influence concerns proper venue in district court infringement proceedings. CCIA was quite supportive of the U.S. Supreme Court’s decision this May in TC Heartland LLC v. Kraft Foods Group Brands LLC and Black personally stated that the Supreme Court’s decision could curb “venue shopping” and Black again equates PAEs and patent trolls in a Huffington Post piece published on the case last December. In that piece and another CCIA blog post following the Court’s decision in May, Black trots out an oft-debunked figure on the supposed $29 billion in annual costs which “patent trolls” place on American businesses. Further, CCIA is part of the group of patent system stakeholders which have caught apoplexy over the patent arbitrage deal made between Allergan and the St. Regis Mohawk Tribe, having recently filed an amicus brief with the U.S. Patent and Trademark Office on the sovereign immunity defense being pursued by the tribe at the Patent Trial and Appeal Board (PTAB).
Although Black seems to be particularly biased among members of the panel, it doesn’t appear certain that other members of the panel have the ability to correct any distortions existing in the roundtable dialogue. Another panel participant is Melissa Wasserman, law professor at the University of Texas at Austin. She co-wrote a paper with Duke Law School professor Michael Frakes and published in 2015 which reinforces much of the efficient infringer narrative that the USPTO is granting bad patents, a pretty subjective claim given the fact that it’s very difficult to define what a bad patent is. Also, the argument pushed by Frakes and Wasserman that the USPTO is incentivized to grant more patents than it should to collect fees seems to take the patent prosecution process, which can take many years and involve multiple rejections, a little lightly to say the least. In any event, the fact that the co-authors dubbed their research as a “quasi-experiment” is a good indication that they might not take the empirical nature of their own research all too seriously.
Finally, the panel includes Lisa Cook, associate professor of economics and international relations at Michigan State University. Although her resume indicates that innovation is one of her current research areas, there’s no clear indication that she has a good deal of experience in patent policy. She does have a good deal of experience serving at Harvard University, a college which has published blatantly anti-patent analysis in the recent past, so she could be of a certain pre-informed opinion.
It’s really sad to note but it does appear that the anti-patent smear campaign being perpetuated by the efficient infringer cabal has come home to roost at an unexpecting Brookings Institution. In early July, The Wall Street Journal ran an article exposing Google’s vast campaign to influence academic research on various policy matters, including patents. It’s also not as if Brookings is above the potential taint of paid influence as a New York Times article published in August 2016 detailed how Brookings worked with various corporations donating money to Brookings to deliver policy results.