Thursday, January 28, 2016

Ethical norms in "intellectual property" scholarship?

Note the publication of the paper Open Letter on Ethical Norms in Intellectual Property Scholarship by Feldman, Lemley, Masur and Rai with abstract

As scholars who write in intellectual property (“IP”), we write this letter with aspirations of reaching the highest ethical norms possible for our field. In particular, we have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy debates in the field. Some dollars come with strings attached, such as the ability to see or approve academic work prior to publication or limitations on the release of data. IP scholars who are also engaged in practice or advocacy must struggle to keep their academic and advocacy roles separate.

Our goal is to bring attention to the dramatic changes that are occurring in the field, highlight the potential pitfalls, and suggest a set of ethical norms to which we will strive to adhere. We conclude this letter with a set of ethical norms to which a large number of IP academics have already subscribed. We welcome additional signatories to the principles expressed in this letter.

Below footnote 5, one has the text:

We thank a large number of our colleagues for helpful comments that have shaped these norms, including both signatories and nonsignatories. Thanks to John Allison, Jim Bessen, Miriam Bitton, Colleen Chien, Ralph Clifford, Wes Cohen, Jorge Contreras, Dennis Crouch, Mark Davison, Rochelle Dreyfuss, James Grimmelman, Ariel Katz, Brian Love, David Opderbeck, Lisa Larrimore Ouellette, Michael Risch, Josh Sarnoff, Jason Schultz, Dave Schwartz, Ted Sichelman, Matt Spitzer, and Jennifer Urban, among many others, for helpful comments and suggestions.

And one has the text

Finally, we are mindful of the need to protect the role of the academic as a trusted source of reliable information for policymakers and society at large. The issues described above run the risk of creating the impression in the minds of the public that we are lobbyists rather than scholars — with the accompanying loss of trust.

**Of issues in medical science

Recently, medical science has faced significant challenges and has engaged in serious efforts to develop mechanisms to address them. Studies of research in the field of medicine have long identified concerns about the connection between sponsorship and results.8 For example, a 2010 study in the Journal of the American Medical Association (“JAMA”) concluded that industry sponsored medical research tends to yield pro-industry conclusions.9 In a meta-analysis10 of eight articles that covered more than eleven hundred medical research studies, Bekelman et al. found that industry-sponsored trials were 3.6 times more likely to reach conclusions favorable to industry than those without industry sponsorship.11 In addition to more positive outcomes, the articles also raised concerns about subtle judgment issues in the design of the sponsored medical trials that could influence results.12

Direct sponsorship of research is not the only cause of concern. Studies have concluded that other types of financial ties, outside of direct sponsorship, can have an effect on results. For example, a 1998 study published in the New England Journal of Medicine examined 86 studies related to a particular type of pharmaceutical. The study showed that authors whose research supported the use of the particular pharmaceutical were significantly more likely to have financial relationships with the manufacturers than those who were neutral or critical.13

**Of law review articles:

In contrast to medical research, legal research lags well behind, both in terms of the establishment of ethical codes and methods of enforcing those codes. The overwhelming majority of legal journals are not peer-reviewed. Rather, the articles are chosen and edited by law students whose knowledge of methodological flaws and potential biases may be limited. Law journals generally do not request information on conflicts of interest and do not require disclosure of such information. Similarly, the legal field lacks organizations, such as the NIH and NSF, that have either the purse strings or the bully pulpit to impose meaningful ethical rules. Legal authors may occasionally seek federal funds to support research, but that is far from the norm. As a result, it is unsurprising that behavioral norms similar to those in the scientific fields have yet to emerge.

As to inadequate review of law review articles, Mark Lemley, in the Stanford Law Review, proclaimed Gary Boone the inventor of the integrated circuit.
Did Mark Lemley name Gary Boone as the inventor of the integrated circuit?

Michael Martin states that Prof. Lemley never claimed that Gary Boone invented the integrated circuit. For reference:

Mark A. Lemley, Patenting Nanotechnology, 58 Stan. L. Rev. 601, 611-612 (2005):

The integrated circuit was itself an improvement in the field of computing, a way of building transistors (an invention discussed above) [p. 612] directly into a computer chip by using charged silicon, a semiconductor. The invention opened up not just computing but also calculators, cell phones, and a host of other portable electronic devices. But because two different inventors working independently developed the integrated circuit at about the same time (1971), the patents were put into interference. Gary Boone was ultimately declared the winner, but not until 1999, twenty-eight years after the first patent application was filed.

**Of articles in medical journals possibly pushing pro-industry positions, note the 1999 article by LBE: L.B. Ebert, Commercialization of Information: Science Journals as Infomercials, Intellectual Property Today, p. 5 (Dec. 1999), mentioning an article in the Wall Street Journal on Feb. 2, 1999. See also the article The Man with No Eye is King, posted without attribution on a law firm website. On the related issue of ghost writing in medical journals, see

Grassley continues inquiry into medical ghost-writing
Grassley tracking down physician/faculty who lend names to ghost-written articles

Sen Chuck Grassley (R, Iowa) is asking medical schools about their policies on ghostwriting, specifically, the practice in which faculty agree to be named as authors of articles written primarily by health care companies.

In letters sent to 10 prominent universities on November 18, Grassley, ranking member of the Senate Finance Committee, asked questions about their policies for faculty who lend their names as authors of review articles, editorials, and research articles prepared by marketing and/or medical education companies on behalf of drug and device manufacturers.

**As to some funding supporting Professor Lemley, recall the 2008 post on IPBiz,
Industry contracting with academics to advance their message?
, with text:

Mark Lemley and Carl Shapiro in 85 Tex. L. Rev. 1991 (2007) began: We are grateful to Apple Computer, Cisco Systems, Intel, Micron Technology, Microsoft, and SAP for funding the research reported in this Article. We emphasize that our conclusions are our own, not theirs. Lemley acknowleges Mallun Yen [chief patent counsel of Cisco].

Lemley's conclusions are favorable to IT companies such as Microsoft.

A comment on Techdirt observed:

Jaffe, Lemley and Lerner are shills for Microsoft, et al...

As below, Mr. Lemley is paid by those pushing patent "deform" and therefore biased ...

Separately, some commentary from Lisa Larrimore Ouellette related to Lemley's Myth of the Solo Inventor, and "review" of law review articles:

Lemley isn't making any claims about the scope of the patents these inventors received, so whether "bamboo" appears in Edison's patent is irrelevant. Rather, his claim is a historical one: that while society thinks of Edison as stepping into vacuum and independently creating this pioneering invention, he was really building on others' ideas much more than the canonical myth suggests. I don't think Lemley did original research on this - he relied on peer-reviewed articles like this one - and it is possible that the scholars he relies on got the history wrong. But I don't think your post on ezinearticles about whether Edison was a patent troll really addresses this historical claim.

Thanks for citing your article about Lemley's claim that "[t]he transistor was originally conceived primarily as useful in hearing aids" (to make it easier for others reading these comments, here is a link to your article on Hein, and the relevant page is 86). I haven't carefully checked your sources (just as I don't carefully check the sources of articles I blog about, since this is a blog, not a law review), but it looks like you are right that this is as much a myth as the other myths Lemley debunks!


As a comment on the 2011 post related to the ezine article, LBE did not think Edison was a troll as to the electric light bulb. The big picture was "the war of the currents" and Edison lost, and got booted by Morgan. The Columbian Exhibition on the Chicago Midway in 1893 used no Edison light bulbs. BUT, Edison and the MPPC is an entirely different story, and illustrates a case wherein (extended) patent rights got trumped by antitrust.


Self-regulation can only be the start in improving standards around IP research which included reference to publications relying on
"proprietary" databases:

Perhaps one of the biggest challenges in closely adhering to the paper’s recommendations is around data disclosure. A large amount of relevant data remains confidential, particularly that which relates to out-of-court settlements and licensing agreements. A lack of transparency around the numbers that they used is perhaps the strongest criticism of the paper written by Professors Bessen and Meurer on the cost of NPE disputes to the US economy.

Separately, from LAW LIBRARY JOURNAL Vol. 104:3 [2012-28]:

¶31 Journals’ interest in furthering scholarly research and education leads them
to require that all articles be original (i.e., created by the author and not previously
formally published) at the time of publication. Virtually all journal publication
agreements ask authors to warrant that the article is original and does not infringe
on anyone else’s copyright. The National Conference of Law Reviews’ Model Code
of Ethics notes that authors have a duty to “produce manuscripts through the use of
the law review author’s own talents, skills, knowledge, creativity, mental processes,
research, and time.”39 It appears no studies have been conducted to determine how
common plagiarism is in law journal articles. Whether it is common or rare,
though, any plagiarism is a serious matter.


Paragraph 38


Update on 5 Feb 2016:

From the New York Times on Hillary Clinton and the money from Goldman Sachs:

She has struggled to explain why she took that money, saying at a CNN forum on Wednesday night: “Well, I don’t know. That’s what they offered.”

She said she did not regret taking it, though, noting that other former secretaries of states had given paid speeches and adding that no one could influence her politically.



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