George Mason University Antonin Scalia Law School

Lobbyists Continue to Invoke Discredited Junk Science to Push Patent Legislation

dictionary entry for the word "innovate"It seems no matter how many times the mole gets whacked, it keeps popping back up. 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 since discredited study about the state of patent litigation in the United States.  She goes on to make matters worse by using the highly misleading “patent troll” moniker and positively referring to an out of control bureaucracy that is destroying patents at an alarming rate.

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 achieve its desired result of blaming “trolls” for high litigation costs, the study defined “trolls” to include individual inventors, universities, startups, and even manufacturers who also license their patents. The study also ignores the benefits of the patent system for small business patent owners and inventors who must rely on litigation to stop piracy of their new innovation.

It is important to set things right. Patent litigation is the mechanism by which property owners protect their rights.  This has been true for all types of inventors throughout American history, including such famous American innovators as Thomas Edison, Charles Goodyear, and Elias Howe – all of whom are included in the “patent troll” definition. For software patents specifically, these patents are highly valuable for innovation.  As CPIP founder Adam Mossoff has discussed at length previously, patent protection for software inventions promotes innovation. It is important that every time someone uses junk science and rhetorical epithets to attack the patent system, we continue to call this out for what it is.