Post-Factual Society, The Patent Edition

University of Texas

by: Patrick Anderson | June 16, 2017

A recent student-opinion piece from the University of Texas demonstrates, lock-step, how easy it is to become indoctrinated with the dangerous patent troll narrative:

  1. watch a single episode of a popular television show: “Last week, the founders of Pied Piper from the acclaimed HBO comedy ‘Silicon Valley,’ crossed paths with ‘patent troll.’”
  2. form biased conclusions the TV writers wanted you to form: “Trolls buy rights to an overly broad patent for pennies, then make a living by suing start-ups and settling for thousands of dollars.”
  3. find poorly sourced, and thoroughly debunked “studies” (not once, not twice, but thrice by myself, and at least once academically) that confirm those biases: “software patents have … cost defendants over $83 billion per year.”

Granted, this modus operandi is not limited to college students, but rather has become the new norm in our post-factual society. It is ironic, however, to see this stem from a work of fiction since the author then goes on to support a conclusion with fictional “truths” that have all too real effects. That said, patent owners should leave mocking and outrage to the side and seek to reclaim souls lost to the patent troll narrative wherever possible with facts.

Analog vs Digital

The author laments the differences between patents on physical, real-world inventions versus improvements achieved through breakthroughs in software. Adam Mossoff debunks this common misconception with prose far too beautiful to paraphrase: “If a mechanical typewriter was a patentable invention in the analog world of the Industrial Revolution in the nineteenth century, then a word processor is a patentable invention as a digital machine in the high-tech revolution of the late twentieth century.” Indeed, Professor Mossoff continues a years-long mission to educate on this topic. In 2014, he wrote:

 “To restrict the patent system to only the valuable analog machines and processes of the nineteenth century is to turn the patent system on its head—denying today’s innovators the protections of the legal system whose purpose is to promote and secure property rights in innovation.”

Indeed, Mossoff’s latest work explains how key decisions confirming patent eligibility for controversial subject matter led to substantial expansions of research and investment funding, resulting in innovation booms. For example, Diamond v Chakrabarty “spurr[ed] the explosive growth in the biotech industry” in the United States, at the expense of Europe which was slow to embrace patentability of biotech innovations. Similarly, 1981’s Diamnod v Diehr decision confirmed that a computer program was not automatically an abstract idea, leading to “the ensuing PC Revolution in which software programs became separate commercial products.”

Patents in Daily Life

“The abundance of software patents have trickled into daily life” is referenced as though this is something new, but patents have been a part of daily life as long as there have been patents. Again, here, Professor Mossoff’s penchant for studying the history of intellectual property comes in handy, as his work on The Sewing Machine War of the 1850’s is particularly on point. I’m not even going to explain this one. Just go read it. But suffice to say, patents always exist in daily life. The complexity of a desktop computer exceeds that of a sewing machine by several orders of magnitude (the fact that you can’t see the moving parts with the naked eye being irrelevant), so, too, the number of patents involved is orders of magnitude higher.

The Emperor’s New Patent Thicket

“The result is “patent thickets,” a veritable forest of patents that startups developing must navigate lest they get sued by Apple.” Yes, people continue to see patent thickets where none exist.  Here, again, facts and research are key. Researchers at the Hoover Institution recently determined that the “predictive cumulative royalty yield of patent licensors in the smartphone space should be nearly 80%” while, in reality, the actual royalty yield is a mere 3.4%. Simply put, there is no patent thicket. Just patent owners sticking up for their rights, and reluctant infringers deploying a narrative to generate sympathy for themselves and hostility toward property owners.

So where to go from here?

The author concludes: “Without these changes those who abuse patents will continue to stifle start-ups like Pied Piper.” Well, yes, by all means, please forget all of the historical facts and research above. Our patent policy should absolutely be driven based on the struggles of a made-up company created by a work of fiction.

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