Mark Twain famously said that there “are three kinds of lies: lies, damned lies, and statistics.” Unfortunately, this is just as true today. Misleading statistics about patented innovation have been deliberately injected into the policy debate for the purpose of convincing lawmakers to weaken these essential property rights. And the sad part is that these lies are working, as members of Congress now frequently cite invalid or misleading data about patent litigation to justify legislation that would broadly weaken patent rights for all inventors. All Americans are the victims, as inventors, small businesses, and innovative startups rely on strong patents in driving our innovation economy and high standard of living.

The most recent use of junk science pushing a political agenda comes in the form of a Heartland Institute policy brief that repeats highly misleading statistical claims about patent litigation. The policy brief claims that “[p]atent assertion entities (PAEs), known pejoratively as ‘patent trolls,’ exist to exploit weaknesses in the patent system” and that “PAEs do not … assert the patents they control for legitimate purposes.” As alleged proof, the policy brief asserts that “frivolous patent litigation costs U.S. businesses $29 billion a year in direct costs” and adds that PAEs accounted for 67 percent of patent lawsuits in 2013.

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There are many problems with this policy brief. First and foremost, the studies do not support Heartland’s specific claims. These studies do not count whether lawsuits are “frivolous” or “illegitimate.” They simply count lawsuits by particular patent owners, including individual inventors, universities, startups, and even some manufacturing companies.

Even worse, these studies do not follow established scientific methods in their calculations.  Take the oft-repeated $29 billion figure, which is from a study conducted by James Bessen and Michael Meurer. Widely-respected empiricists Jay Kesan and David Schwartz conducted a rigorous analysis of the Bessen and Meurer study, finding that their $29 billion figure is deeply flawed given that it is based on a biased sample, lacks a proper statistical baseline, and relies on a questionable definition of the relevant patent holders (among many other problems).

The Bessen and Meurer statistics are so unreliable that IAM Magazine’s Joff Wild recently wrote an article entitled “Members of the IP community who cite Bessen and Meurer to justify patent reform are clearly not interested in an honest debate.” Yet, the Heartland policy brief ignores the groundswell of criticism of this junk science, citing these statistics as if they were gospel.

The claim that 67 percent of patent lawsuits in 2013 were brought by PAEs suffers from similar problems. Instead of counting lawsuits that were “frivolous” or “illegitimate,” the study identifies patent owners based on their business models, and the 67 percent figure includes universities, individual inventors, and other legitimate companies who sued infringers of their patented innovation. These are the very people who should be receiving patents and who need strong patent rights to protect their property against large, established companies who might otherwise free ride on their R&D. Counting business models instead of actual abusive behavior is a cheap and misleading way to inflate statistics to make an alleged problem look bigger than it really is.

Some proponents of weaker patent rights have argued that people like me, who favor a more cautious approach, are equally blameworthy because we cannot identify studies that reliably quantify “abusive” patent litigation. But this reasoning suffers from two key problems. First, it is much easier and faster to create unreliable, junk studies than to conduct rigorous empirical research according to well-established academic standards. Second, and more importantly, shouldn’t those in favor of drastically weakening our patent system in response to an alleged litigation problem bear the burden to prove the extent to which that problem exists?

As a result of its reliance on junk science and inflated statistics, the Heartland Institute broadly condemns as allegedly “abusive” many legitimate and valuable patent owners. The irony is that a conservative organization like Heartland is now pushing for Congress to weaken property rights for all inventors, which will undermine the American innovation economy. 

Before broadly weakening the essential property rights of all American inventors, Congress should demand rigorous, empirically sound data to determine the extent of the purported patent litigation problem. The future of America’s innovation economy, which has always rested on the foundation of strong property rights in inventions, is at stake. If anyone should recognize this well-established principle, it should be organizations like the Heartland Institute that defend strong property rights and an unfettered free market in their policy work in other areas.

Mossoff is a professor of law at George Mason University School of Law and co-founder and senior scholar at the Center for the Protection of Intellectual Property.