Innovation Versus Information: How the Shifting Definition of ‘News’ and a Media-Shy IP Community are Driving the Anti-Patent Narrative

When did it become necessary to triangulate the news in order to figure out what was really happening in the world? Many media outlets have significantly slowed down with respect to reporting on the news and are increasingly ramping up on opinion and conjecture in its place. Why that happened isn’t terribly difficult to understand, and it is likely going to only get worse.

Too Much ‘News’

Once upon a time there were few sources of information, with only several TV channels and a small handful of national newspapers were competing for eyeballs. The rise of the 24/7 news cycle brought on by a proliferation of cable news stations with timeslots to fill changed the dynamic. The widespread adoption of Internet technologies and the World Wide Web also made it possible for people to get news throughout the day on their own terms, again making it less necessary for those seeking news and information to go to one of the chosen few industry leading sources. Today, many get news from myriad online sources, social media platforms, YouTube videos and more. There is so much information available, it is almost easy to mistake the information that is available as news.

U.S. newspapers have shed half of their newsroom employees since 2008, according to a new Pew Research Center analysis. And total newsroom employment since 2008 for all employees in the news industry has dropped 23.5%. This drop is easy to understand and even easier to explain. It is increasingly difficult to monetize reporting the news, and reporting news is a capital intense enterprise.

Everyone can have an opinion. Being in the right place at the right time to collect the facts necessary to report on a recent event requires real resources. It is no wonder that so much of what is characterized as “news” is, in fact, opinion and conjecture. In fact, watch any cable TV channel in primetime any night of the week and it is panel after panel analyzing events.

Opinion, as informed as it may be, is not fact. In order to have any hope of figuring out what really happened, one must watch multiple news reports and read numerous sources – and that is when you seek black and white facts for which there is supposed to be an objective truth. Of course, the belief that one can triangulate the truth through resorting to popular sources of information supposes that even those who have the time and are willing to make the attempt have the ability to find the truth in a sea of opinion and bias. Often, that is not the case.

Cooperate or Be Co-opted

As newsrooms have decreased in size over the last 12+ years, and are experiencing significant contraction yet again due to the coronavirus (see here, here and here, for example), it will continue to be difficult for newsrooms to actually report the news, which requires a real investment in human capital, significant resources and time. This is why reporters (and bloggers too) rely on the cooperation of those who are in a position to share news of importance.

Not to put too fine a point on it, but the cooperation of patent owners and innovators has been wanting (to be polite).

Perhaps the most professionally frustrating thing I’ve had to deal with in all my years at IPWatchdog is knowing things and not being able to write them. While those who advocate for a weaker patent system are extremely willing to share their stories about how patents are being misused and abused by nefarious patent owners, innovators who rely on strong patent rights as the lifeblood of their enterprises generally refuse to communicate, or do so only on background or after there is a promise that their story not be used.

Those who read IPWatchdog may know that the Cleveland Clinic has stopped investing in medical diagnostics as the result of the U.S. Supreme Court’s decision in Mayo v. Prometheus and the Federal Circuit’s expansion upon that ruling to an absolute per se rule that prevents the patenting of medical diagnostics. The reason is simple – investors won’t provide capital, so these innovations cannot be commercialized. Whenever we write about this, we cite an interview with Congressman Steve Stivers (R-OH). What Stivers told IPWatchdog on the record is well known in policy circles within the industry, but the Cleveland Clinic has refused to go on the record directly despite speaking on at least several panels (for which we have been unable to get a transcript).

Fear of Telling the Story

The story of the Cleveland Clinic’s reluctance to tell their story far and wide is hardly unique. Generally speaking, innovators do not want to tell their story. Sometimes they have hired an attorney who is advising them not to speak with the press. Sometimes they are afraid that if they tell their story they will become a target of those companies that challenge patents and attempt to vilify patent owners. Sometimes they don’t want investors to know that they view their patents as worthless. The common denominator is always that they fear their story getting out, the importance of a strong patent system is self-evident, and others need to just tell Congress or the courts to fix the problem.

For those who are willing to share their stories, they often require arms-length deniability. To them this means they will point you to something interesting and then want you to dig into a voluminous file in search of what they believe is a nugget that “you might find interesting.” Inviting a reporter (or blogger) to spend tens of hours poring through documents to find something that might be interesting is a non-starter. Those who have news that they want covered create a dossier that is easy to follow, they don’t create a game with 99 levels to get to the finish line. If the reporter (or blogger) finds what is presented interesting then they will pick it up and run with it, but expecting that you will be able to point to something and magically kick off a comprehensive round of investigative journalism is wildly naïve, at least for a patent / innovation story.

Another example is the coronavirus narrative. What the media fails to explain, at least partly because IP stakeholders are not doing enough to sell them the story, is why there is an insufficient number of reliable diagnostic tests that can be deployed. As those in the patent industry know, beginning in 2012, the United States Supreme Court made it extremely difficult to patent medical diagnostics with their decision in Mayo v. Prometheus. The United States Court of Appeals for the Federal Circuit then extensively expanded upon that decision and has created an absolute per se rule that prevents the patenting of medical diagnostics.

Testing for the coronavirus is a medical diagnostic. The coronavirus is novel, which will require a new diagnostic that must be vetted for accuracy and reliability. Without the ability to patent these types of innovations, the leaders in medical diagnostics have abandoned their work because investors do not provide capital. Therefore, like the Cleveland Clinic, because of the Supreme Court and the Federal Circuit, fewer research hubs and universities have been working on the precise medical diagnostics that we now need over the last decade. U.S. citizens should be angry about that, but they have never heard the story.

Wise Up, or Expect More Anti-Patent News

Unless patent owners and innovators wise up, as newsrooms continue to decrease in size, we should all expect more, not less, negative media coverage about patents from what remains of the popular press. The corporations and entities that find it useful to weaken the patent system are not going to suddenly stop funneling stories to newsrooms and reporters now that it is becoming easier to influence news coverage.

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