Junk science used to erode innovation-fueling patent laws

As fans of “The Walking Dead” know well, no matter how many times the zombie gets shot, it keeps plodding on and attacking innocent victims.

This is an apt metaphor for the anti-“patent troll” statistical studies that keep being invoked in the patent policy debates, no matter how many times these studies are rightly called out for being the junk science that they are.

The latest incarnation of this problem is a recent op-ed by Katie Johnson of the National Association of Realtors, which relies on a long discredited study about patent litigation. Just like the mythical zombie apocalypse, the portended “patent troll” apocalypse is just as mythical.

{mosads}No one likes to be sued, especially when the lawsuit seems baseless, as some realtors felt when they were sued a few years ago by a single patent owner. If Ms. Johnson limited her complaint to this single patent owner, it would not have been a problem.

But she leaps from this single case to a broad condemnation of an allegedly broken patent system, and the only justification for this leap is her invocation of the zombie junk science studies about patent litigation and her willingness to use the highly misleading “patent troll” epithet.

In the name of evidenced-based policy, this cannot stand. This is especially true when we are talking about the patent system, which is widely recognized as a driver of economic growth and innovation, especially for startups. Unfortunately, the zombie of bad data has once again infected someone’s analysis, reanimating erroneous conclusions drawn from a single example.

Although Ms. Johnson cites only the $1.75 million estimate to defend a patent suit from the flawed study, the entire study was flawed from top to bottom. 

To name just one of its many flaws, the authors achieved their desired result of blaming “trolls” for allegedly high litigation costs by defining “patent trolls” so broadly that they included individual inventors, universities, startups and even manufacturers who also license their patents. The study also ignores all benefits that patents provide for small business patent owners and inventors who must rely on litigation to stop piracy of their innovations.

As anyone who watches “Shark Tank” knows, the value of secure and effective patent rights to small business patent owners cannot be understated. For many new businesses, a patent is the primary means to obtain financing or to ensure a viable path to market.  

The legal protections for their innovation ensure the opportunity for these businesses to be rewarded for their inventions. However, as noted by prominent scholars, many of the patent-related “costs” identified in the flawed study just invoked again by Ms. Johnson are actually the contemplated rewards for the innovators that the patent system promises them.

Making matters even worse, Ms. Johnson applauds the innovation-killing administrative tribunal known as the Patent Trial & Appeal Board (PTAB). The PTAB is rightly criticized as an out of control bureaucracy destroying patents at an alarming rate. One former federal judge called the PTAB a “death squad,” and the head of the PTAB cheerfully embraced this designation.

The real victims are the individuals, universities, startups and small businesses — the sources of new innovation in this country — that are undercapitalized and cannot afford the prohibitively high costs in court and the PTAB of defending their productive labors against pirates (especially when these pirates are well-funded and large corporations).

The additional barriers to defending their rights impair their ability to secure capital and financing to start and grow their businesses. After all, who would invest in the next start-up if their principal asset, a patent, could be arbitrarily revoked?

Despite the clear harms caused by weakening patent rights, the zombie data leads Ms. Johnson and others to applaud these developments. She specifically identifies the value of a “two-track” approach to attacking patents. This approach, using courts and the patent office to simultaneously attack patent owners, only increases the litigation costs to protect patent rights and dissuade patent owners from protecting their legitimate innovations.

It is important to set things right. Litigation is the means by which property owners protect their rights against pirates and other trespassers, and we should not systematically weaken property rights just because a few people may or may not have acted badly. We don’t make it harder for all landowners to sue for trespass simply because one curmudgeon frightens children who walk too closely to his lawn.

But this is exactly what Ms. Johnson is demanding that Congress do, and she is invoking long discredited junk science to make her case. The stakes are high, because weakening patents threatens the foundations of the U.S. innovation economy — risking jobs and economic growth. The zombie data should stay dead, before it does real harm to the U.S. innovation economy.

David Lund is the John F. Witherspoon Legal Fellow in the Center for the Protection of Intellectual Property at the Antonin Scalia Law School, George Mason University.

The views expressed by contributors are their own and not the views of The Hill.