All of this is clearly going to infuriate a lot of people. The will look for reasons why Malackowski and Barney have come to the conclusions they have: they will accuse them of, for example, being USPTO apologists or of trying to create a market for patents – something that will help Ocean Tomo achieve its business goals. However, what the critics would be better off doing is to read through the whole article very carefully to work out whether the research that the two authors have done is flawed. If it is, they need to explain why and how the flaws distort the real picture. In other words, they need to address the message rather than the messengers.
What we have had up to now in the debate about the USPTO and the job it is doing is a lot of rumour, anecdote and conspiracy with no cold, hard evidence to back up any of the claims being made. Now, it turns out, the first empirical look at the totality of USPTO output over the last five years paints a picture that is almost completely contrary to the one the office’s critics are wont to portray.
Of course the initial hoopla of "high patent grant rates" by Quillen and Webster was based on bad legal and factual analyses. LBE explained why the Quillen/Webster work was flawed and how the flaws distorted the true picture. See for example
PATENT GRANT RATES AT THE UNITED STATES PATENT AND TRADEMARK OFFICE. IP professors continued to cite the work of Quillen and Webster.
The patent hawk blog noted of work related to Bessen and Meurer:
Joseph Goebbels, Hitler's propagandist, must be smiling up from Hell at academics Bessen and Meurer, who concocted rubbish figures about the value of U.S. patents. Mainstream media hack Gordon Crovtiz has taken the numbers as gospel. "Empirical research" he calls them. "Shocking findings." Crovitz preaches his new-found gospel in "Patent Gridlock Suppresses Innovation."
In that article of July 14, L. Gordon Crovitz mistakenly wrote:
Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they may want to use some day and that otherwise could end up in the hands of "patent trolls." The Trust was formed in March 2007, not exactly recent to July 2008.
Crovitz wrote of Bessen and Meurer:
New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, "Patent Failure," found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.
These are shocking findings, but they point to the solution. New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs.
The problem is that the "new empirical research" is merely the ipse dixit of Bessen and Meurer.
from AP's Brazil official's Nazi reference rocks WTO talks
Some pre-negotiation jabbing [at the WTO] turned into a potentially damaging diplomatic incident Saturday [July 19] when Brazil's foreign minister said rich countries' deception in trade talks reminded him of tactics used by Nazi propaganda chief Joseph Goebbels.
The Sept 08 issue of IPT savages the Crovitz article in a piece titled:
Does The Wall Street Journal Understand Intellectual Property Law?