The Hill Blog: Junk science still front and center in push to weaken patents, by Adam Mossoff
This post originally appeared in The Hill on February 13, 2015.
Mark Twain famously said that there “are three kinds of lies: lies, damned lies, and statistics.” Unfortunately, this is just as true today. Misleading statistics about patented innovation have been deliberately injected into the policy debate for the purpose of convincing lawmakers to weaken these essential property rights. And the sad part is that these lies are working, as members of Congress now frequently cite invalid or misleading data about patent litigation to justify legislation that would broadly weaken patent rights for all inventors. All Americans are the victims, as inventors, small businesses, and innovative startups rely on strong patents in driving our innovation economy and high standard of living.
The most recent use of junk science pushing a political agenda comes in the form of a Heartland Institute policy brief that repeats highly misleading statistical claims about patent litigation. The policy brief claims that “[p]atent assertion entities (PAEs), known pejoratively as ‘patent trolls,’ exist to exploit weaknesses in the patent system” and that “PAEs do not … assert the patents they control for legitimate purposes.” As alleged proof, the policy brief asserts that “frivolous patent litigation costs U.S. businesses $29 billion a year in direct costs” and adds that PAEs accounted for 67 percent of patent lawsuits in 2013.
There are many problems with this policy brief. First and foremost, the studies do not support Heartland’s specific claims. These studies do not count whether lawsuits are “frivolous” or “illegitimate.” They simply count lawsuits by particular patent owners, including individual inventors, universities, startups, and even some manufacturing companies.
Even worse, these studies do not follow established scientific methods in their calculations. Take the oft-repeated $29 billion figure, which is from a study conducted by James Bessen and Michael Meurer. Widely-respected empiricists Jay Kesan and David Schwartz conducted a rigorous analysis of the Bessen and Meurer study, finding that their $29 billion figure is deeply flawed given that it is based on a biased sample, lacks a proper statistical baseline, and relies on a questionable definition of the relevant patent holders (among many other problems).