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Tuesday, July 26, 2011

NPR's Take on Patents: Politicizing Litigation

I absolutely adore the NPR program This American Life.  I wait for the new episode every weekend.  I laugh.  I cry.  I congratulate myself for donating to WBEZ Chicago.  But I must say that I was disappointed by this week's episode, When Patents Attack.  Perhaps disappointed is the wrong word, but definitely puzzled.

The episode was reported by Laura Sydell and Alex Blumberg who is also a co-host of Planet Money -- an NPR podcast I like so much that I have assigned several episodes to my International Business Transactions students.  The hour-long episode is devoted to the evils of patent trolls and the destructive litigation that they bring.  

Now, I'm not an IP attorney, so I'll try to steer clear of commenting on the story from a patents perspective.  But what I found interesting about the reporting was the political take.  The reporters begin and end from an unapologetic stance that patent litigation is destructive (and believe me, there is no love for lawyers in this story).  They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation.  This is a perfectly reasonable position to take -- I've seen it done plenty in scholarly commentary and the mainstream press.  I've also seen the opposing position defended.  

What bothered me was the very hostile take on litigation.

 The talking points about meritless litigation and nuisance lawsuits could have been taken word for word from the tort reform lobby.  If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.  

I was also unimpressed by the tone of the reporting.  Sydell and Blumberg purported to uncover a massive chain of shady deals and holding companies, which appeared to me to just be normal ways of conducting transactions, not a reason to indict (or approve)  the underlying asset being transferred.  They also cited statistics such as "80% of software engineers surveyed believe that the patent system hinders innovation rather than promotes it."  But this doesn't prove much -- it simply reflects what software engineers believe, and tells us nothing about how they actually behave.  Good economists and social scientists can answer that question with much better data.  The use of such figures again harkens back to the talking points of the tort reform folks who will tell you that surveys of judges and lawyers reveal massive discovery abuse.  In fact, studies of actual discovery practices show a very different picture.  For those interested in more about these facts, Linda Mullenix has several great articles about this.

Finally, the story didn't do much in the way of discussing the issues of ex ante or ex post patent enforcement.  They mention the number of redundant patents and hammer home the idea of a litigation-heavy environment, but did very little to explore the idea that the U.S. has made a regulatory choice to have a relatively relaxed patent approval regime reliant on ex post private enforcement.  Would an approach which requires vigorous and expensive prosecution of patents ex ante have more or less of a chill on innovation?  We would never know from this story that this is even a question that one should ask about a regulatory and adjudicatory system.  

It is an interesting topic and an interesting story, but falls short of some of the better reporting that I expect from the TAL and Planet Money teams.  It also reinforces that pursuit of a political agenda or conclusion in one arena (high tech innovation) might not suit your tastes in another, namely larger issues of court access, litigant behavior, agency design, and regulatory enforcement.

(cross-posted at Civ Pro prawfs blog).

Posted by Robin Effron on July 26, 2011 at 01:12 AM in Civil Procedure, Intellectual Property, Web/Tech | Permalink

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Comments

Bruce, the This American Life segment didn't propose making changes to procedural rules. The closest it came to suggesting legal reforms had to do with the substance of patent law. Robin's critique focused on how the report described litigation using pejorative, unfavorable terms -- terms the same reporters probably wouldn't have used for other kinds of lawsuits. I'm not suggesting procedural reforms for patent lawsuits, either; I'm just responding to Robin's point by saying that one can quite legitimately have different opinions about the costs and benefits of different kinds of lawsuits.

Posted by: James Grimmelmann | Jul 30, 2011 12:47:45 AM

"Substance and procedure are intertwined. Why should we demand that reporters have a trans-substantive view on the merits of litigation? They detailed the destructiveness of the litigation here." There are trade-offs to changing procedural rules to make cases harder for plaintiffs to bring and maintain, which I would expect a thorough report on the costs of litigation to at least mention. One possibility, which I can't tell if you are suggesting, would be to only change the procedural rules in one particularly disfavored area of the law, but that has no easy stopping point, which I understood to be Robin's point.

Posted by: Bruce Boyden | Jul 29, 2011 3:19:51 PM

They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation.

They asked Intellectual Ventures for an example, and when they investigated it, they quite reasonably concluded that the patents in the example didn't serve to promote innovation.

The reporters begin and end from an unapologetic stance that patent litigation is destructive

They provide evidence for it, including having Peter Detkin from Intellectual Ventures on tape calling litigation "highly inefficient."

If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.

Substance and procedure are intertwined. Why should we demand that reporters have a trans-substantive view on the merits of litigation? They detailed the destructiveness of the litigation here.

Sydell and Blumberg purported to uncover a massive chain of shady deals and holding companies, which appeared to me to just be normal ways of conducting transactions, not a reason to indict (or approve) the underlying asset being transferred.

They made a compelling case that Intellectual Ventures was using the shell companies not to hide its strategies from competitors or for business purposes, but to try to steer clear of the bad publicity that would come from being associated with being a patent plaintiff. IV's fearful and embarrassed reaction to their evidence shows that this is a line of criticism with something to it.

Posted by: James Grimmelmann | Jul 29, 2011 3:24:00 AM

Good Information... Thanks for sharing.

Posted by: FDCPA | Jul 27, 2011 1:36:58 AM

I agree with your take on this, and sadly, it's true of many Planet Money episodes. They were incredibly rude and dismissive toward Elizabeth Warren. Their list of "best econ books" is tilted rightwards. Good points all. They are constantly bending over backwards to prove they don't have a liberal NPR bias. And they dare not offend their banker sponsors by hosting a really harsh critic of the financial sector, like Yves Smith, Michael Hudson, or Mike Konczal.

For good econ listening, a better course is a weekly dose of Russ Roberts's EconTalk and Doug Henwood's Behind the News. Each is honest about his "priors." And each has some sense of the limitations of any discipline that treats moral commitments as corrosive constraints on "objectivity."

Posted by: StuffNPRListenersLike | Jul 26, 2011 8:49:34 PM

A patent is referred to a set of rights granted to an individual or business by the state that gives them public disclosure of a new invention for a specific amount of time. This grant does not actually give the holder the exclusive right to practice the invention, but simply the right to preclude other outside parties from using or imitating it. Patent Litigation is a controversy or disagreement between two independent parties regarding a dispute of intellectual or physical property.

Posted by: Jared | Jul 26, 2011 12:51:29 PM

Great Information to read, Please share ur opinions.

Posted by: Debt Collection Laws | Jul 26, 2011 5:12:52 AM

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