Patent News

Nov. 19, 2015

IP Watchdog: Repetition of Junk Science & Epithets Does Not Make Them True, by Adam Mossoff

This post originally appeared in IP Watchdog on November 19, 2015.

In 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.