NPR's Take on Patents: Politicizing Litigation

I don't usually use this forum for editorializing, but I posted the following to Prawfsblawg, and I thought that the radio program might be of interest to our readers:

I absolutely adore the NPR program This American Life.  I wait for the new episode every weekend.  I laugh.  I cry.  I congratulate myself for donating to WBEZ Chicago.  But I must say that I was disappointed by this week's episode, When Patents Attack.  Perhaps disappointed is the wrong word, but definitely puzzled.

The episode was reported by Laura Sydell and Alex Blumberg who is also a co-host of Planet Money -- an NPR podcast I like so much that I have assigned several episodes to my International Business Transactions students.  The hour-long episode is devoted to the evils of patent trolls and the destructive litigation that they bring.  

Now, I'm not an IP attorney, so I'll try to steer clear of commenting on the story from a patents perspective.  But what I found interesting about the reporting was the political take.  The reporters begin and end from an unapologetic stance that patent litigation is destructive (and believe me, there is no love for lawyers in this story).  They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation.  This is a perfectly reasonable position to take -- I've seen it done plenty in scholarly commentary and the mainstream press.  I've also seen the opposing position defended.  

What bothered me was the very hostile take on litigation.  The talking points about meritless litigation and nuisance lawsuits could have been taken word for word from the tort reform lobby.  If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.  

I was also unimpressed by the tone of the reporting.  Sydell and Blumberg purported to uncover a massive chain of shady deals and holding companies, which appeared to me to just be normal ways of conducting transactions, not a reason to indict (or approve)  the underlying asset being transferred.  They also cited statistics such as "80% of software engineers surveyed believe that the patent system hinders innovation rather than promotes it."  But this doesn't prove much -- it simply reflects what software engineers believe, and tells us nothing about how they actually behave.  Good economists and social scientists can answer that question with much better data.  The use of such figures again harkens back to the talking points of the tort reform folks who will tell you that surveys of judges and lawyers reveal massive discovery abuse.  In fact, studies of actual discovery practices show a very different picture.  For those interested in more about these facts, Linda Mullenix has several great articles about this.

Finally, the story didn't do much in the way of discussing the issues of ex ante or ex post patent enforcement.  They mention the number of redundant patents and hammer home the idea of a litigation-heavy environment, but did very little to explore the idea that the U.S. has made a regulatory choice to have a relatively relaxed patent approval regime reliant on ex post private enforcement.  Would an approach which requires vigorous and expensive prosecution of patents ex ante have more or less of a chill on innovation?  We would never know from this story that this is even a question that one should ask about a regulatory and adjudicatory system.  

It is an interesting topic and an interesting story, but falls short of some of the better reporting that I expect from the TAL and Planet Money teams.  It also reinforces that pursuit of a political agenda or conclusion in one arena (high tech innovation) might not suit your tastes in another, namely larger issues of court access, litigant behavior, agency design, and regulatory enforcement.

RJE