Below is the text of my oral testimony to the Senate Commerce, Science and Transportation Committee, the Consumer Protection, Product Safety, and Insurance Subcommittee, at its November 7, 2013 hearing on “Demand Letters and Consumer Protection: Examining Deceptive Practices by Patent Assertion Entities.” Information on the hearing is here, including an archived webcast of the hearing. My much longer and more indepth written testimony is here.
Please note that I am incorrectly identified on the hearing website as speaking on behalf of the Center for the Protection of Intellectual Property (CPIP). In fact, I was invited to testify soley in my personal capacity as a Professor of Law at George Mason University School of Law, given my academic research into the history of the patent system and the role of licensing and commercialization in the distribution of patented innovation. I spoke for neither George Mason University nor CPIP, and thus I am solely responsible for the content of my research and remarks.
Chairman McCaskill, Ranking Member Heller, and Members of the Subcommittee:
Thank you for this opportunity to speak with you today.
There certainly are bad actors, deceptive demand letters, and frivolous litigation in the patent system. The important question, though, is whether there is a systemic problem requiring further systemic revisions to the patent system. There is no answer to this question, and this is the case for three reasons.
Harm to Innovation
First, the calls to rush to enact systemic revisions to the patent system are being made without established evidence there is in fact systemic harm to innovation, let alone any harm to the consumers that Section 5 authorizes the FTC to protect. As the Government Accountability Office found in its August 2013 report on patent litigation, the frequently-cited studies claiming harms are actually “nonrandom and nongeneralizable,” which means they are unscientific and unreliable.
These anecdotal reports and unreliable studies do not prove there is a systemic problem requiring a systemic revision to patent licensing practices.
Of even greater concern is that the many changes to the patent system Congress is considering, incl. extending the FTC’s authority over demand letters, would impose serious costs on real innovators and thus do actual harm to America’s innovation economy and job growth.
From Charles Goodyear and Thomas Edison in the nineteenth century to IBM and Microsoft today, patent licensing has been essential in bringing patented innovation to the marketplace, creating economic growth and a flourishing society. But expanding FTC authority to regulate requests for licensing royalties under vague evidentiary and legal standards only weakens patents and create costly uncertainty.
This will hamper America’s innovation economy—causing reduced economic growth, lost jobs, and reduced standards of living for everyone, incl. the consumers the FTC is charged to protect.
Second, the Patent and Trademark Office (PTO) and courts have long had the legal tools to weed out bad patents and punish bad actors, and these tools were massively expanded just two years ago with the enactment of the America Invents Act.
This is important because the real concern with demand letters is that the underlying patents are invalid.
No one denies that owners of valid patents have the right to license their property or to sue infringers, or that patent owners can even make patent licensing their sole business model, as did Charles Goodyear and Elias Howe in the mid-nineteenth century.
There are too many of these tools to discuss in my brief remarks, but to name just a few: recipients of demand letters can sue patent owners in courts through declaratory judgment actions and invalidate bad patents. And the PTO now has four separate programs dedicated solely to weeding out bad patents.
For those who lack the knowledge or resources to access these legal tools, there are now numerous legal clinics, law firms and policy organizations that actively offer assistance.
Again, further systemic changes to the patent system are unwarranted because there are existing legal tools with established legal standards to address the bad actors and their bad patents.
If Congress enacts a law this year, then it should secure full funding for the PTO. Weakening patents and creating more uncertainties in the licensing process is not the solution.
Lastly, Congress is being driven to revise the patent system on the basis of rhetoric and anecdote instead of objective evidence and reasoned explanations. While there are bad actors in the patent system, terms like PAE or patent troll constantly shift in meaning. These terms have been used to cover anyone who licenses patents, including universities, startups, companies that engage in R&D, and many others.
Classic American innovators in the nineteenth century like Thomas Edison, Charles Goodyear, and Elias Howe would be called PAEs or patent trolls today. In fact, they and other patent owners made royalty demands against thousands of end users.
Congress should exercise restraint when it is being asked to enact systemic legislative or regulatory changes on the basis of pejorative labels that would lead us to condemn or discriminate against classic innovators like Edison who have contributed immensely to America’s innovation economy.
In conclusion, the benefits or costs of patent licensing to the innovation economy is an important empirical and policy question, but systemic changes to the patent system should not be based on rhetoric, anecdotes, invalid studies, and incorrect claims about the historical and economic significance of patent licensing
As former PTO Director David Kappos stated last week in his testimony before the House Judiciary Committee: “we are reworking the greatest innovation engine the world has ever known, almost instantly after it has just been significantly overhauled. If there were ever a case where caution is called for, this is it.”
WT – In a 5-minute presentation, I could not go in-depth into the statistical study issues, and I do address this far more in my written testimony, in which I spend several pages of single-spaced text addressing the issue you raised. I recommend that you take a look at the written testinony of which this one part is just a 2-minute summary. In short, the current “studies” by RPX, Patent Freem and the “study” done oriignally for the GAO and then it discarded because it could not use it in good conscience, are all unscientific and unreliable (to put the point politely). More important, and this is the issue I discuss at length in my written testimony, costs are always symmetrical, and there has not been a single study of the impact that FTC regulation woudl have on legitimate patent owners, patent licensing or legitimate patent litigation against real infringers. Not a single one. The asymmetry in the current policy debates is striking and this fact alone reveals the degree to which this is not a balanced, reasonable assessment of the issues, as best revealed by the nonobjective rhetoric that dominates this debate and which I have written on extensively both here at Truth on the Market and elsewhere.
You critique the empirical evidence on patent trolls. Yet you say things like this — “impose serious costs on real innovators” — that are not supported by any empirical evidence whatsoever, and certainly not any empirical evidence that is of higher quality than what you criticize elsewhere.
1) The last time the FTC stuck its nose into patent licensing we ended up with the nine no-nos. These people are not competent to rule on anything about patents.
2) Actually there is a lot of evidence that the patent litigation explosion is a myth. Here is one such paper: Cotropia, Christopher Anthony and Kesan, Jay P. and Schwartz, David L., Patent Assertion Entities (PAEs) Under the Microscope: An Empirical Investigation of Patent Holders as Litigants (November 10, 2013). Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-20; Illinois Public Law Research Paper No. 14-17. Available at SSRN: http://ssrn.com/abstract=2346381
3) The basis of this whole argument is that there a large numbers of incorrectly issued patents. There is absolutely no objective evidence for this position and there are some papers on point. I believe Pat Choate is one economist who has written on this.