Misleading patent troll narrative driven by anecdote, not facts

EDITORIAL NOTE: Laurie Self will be speaking at the upcoming IAM Patent Law and Policy event on November 17, 2015, in Washington, DC. Self will be a panelist on the first panel of the day, which will discuss what has driven the patent legislative agenda, what has been fixed, what remains to be done and how it will all affect patent owners’ ability to secure maximum monetary value for their rights in transactions.




Is this what you think of when you think of an inventor? Probably not, yet the patent troll narrative became conventional wisdom on patents almost overnight.

There is a lesson in the latest book by Freakonomics authors Steven Levitt and Stephan Dubner that Washington policy makers would do well to read.

The passage from the book, Think Like a Freak, is about the use of anecdotes, stories and the persuasive power of narrative.

By “story,” the authors say, what they don’t mean is “anecdote.”

“An anecdote is a snapshot, a one-dimensional shard of the big picture. It is lacking in scale, perspective, and data,” they write. “An anecdote is something that once happened to you, or to your uncle, or to your uncle’s accountant. It is too often an outlier, the memorable exception that gets trotted out in an attempt to disprove a larger truth. … Anecdotes often represent the lowest form of persuasion.”

In contrast, they say, a story “fills out the picture.”

“It uses data, statistical or otherwise, to portray a sense of magnitude; without data, we have no idea how a story fits into the larger scheme of things,” Levitt and Dubner write, adding that a good story includes a time frame that gives the audience enough reference to judge whether the phenomenon in question is noteworthy or anomalous. “A story lays out a daisy chain of events, to show the causes that lead up to a particular situation and the consequences that result from it.”

When I recently read this passage, I was struck by how well the dynamic of anecdote vs. story captures the heated Washington debate over patent legislation we have witnessed in the past few years.

The “patent troll” narrative — fueled by anecdotal tales of mom-and-pop operations snared by fraudulent patent suits and the image of ugly green trolls paraded from the House floor to the White House – became the conventional wisdom on patents almost overnight. As readers of IPWatchdog know well, the only “data” offered to support the narrative were compiled from surveys with unscientific methodologies, nonrandomized survey bases and ill-defined notions of a “troll” that swept in universities, small inventors and anyone who owned a patent but didn’t manufacture, market and distribute the related product.

So backers of the troll campaign ferried to Capitol Hill a series of witnesses who spoke about the bullying and unjust demand letters they received threatening unmerited patent lawsuits. And members of Congress – forgetting another truism voiced by Levitt and Dubner: “The plural of anecdote is not data” – ate up these tales of woe.

This is not to dismiss the troubles suffered by these witnesses and others like them. We have, unfortunately, seen high-profile incidences in which patents have been abused. In one case, the Federal Trade Commission accused a company and its law firm of using deceptive sales claims and phony legal threats in letters that told thousands of small businesses around the country they were guilty of patent infringement. The agency made headlines when it barred the company and law firm from making deceptive representations when asserting patent rights. But when that case comes up in the “troll” debate, what’s forgotten is that the FTC was able to use existing consumer protection authority to deal with that kind of deception, that kind of fraud.

The House Energy and Commerce Committee has worked on a bill, the Targeting Rogue and Opaque Letters Act, or TROL Act, that specifically targets this kind of abusive use of demand letters without hurting the rights of all patent owners. But this bill has been far from the center ring of Congress’s patent legislation.

The broader, misleading troll narrative propelled the creation of omnibus patent legislation in the House that threatened to shake up nearly every aspect of the legal protections granted by patents – at a time when provisions of the 2011 America Invents Act overhaul of patent law were still coming into effect. The troll narrative had become so ingrained so quickly that the resulting “Innovation Act” passed the House by a huge majority in late 2013 before most members had any chance to read and understand it.

Well, that was nearly two years ago. The push for massive patent legislation lost momentum in the Senate by the middle of last year as universities, invention companies and others explained to senators and their staff the dangers of so drastically weakening patents.

What helped were genuine stories.

I work for Qualcomm, and our well documented story is one I tell often. We are a company that cares deeply about the strength and credibility of the patent system because it’s so important to our business and our ability to keep inventing the technologies that make possible smartphones and the countless mobile capabilities everyone now takes for granted in our daily lives. We can afford the years and billions of dollars of R&D that tames the laws of physics for the sake of mobile technology because patents allow us to license use of that technology and then plug the resulting revenue back into R&D.

University representatives told their stories of how patents allow their research and breakthroughs to become commercialized medical cures and technological wonders. The venture capital community mapped out how patents make possible investment in risky start-ups with breakthrough ideas. Historians of the patent system and economists who study empirical data to understand innovation filled in the stories with verifiable data and facts and the context of two centuries of patent experience.

Still, the same patent legislation – and by same I mean exactly the same in the House – was introduced at the start of the new Congress last January. But the legislation has stalled again, in what I hope is a triumph of story over anecdote. Stories are powerful, especially when the average staff person or member on Capitol Hill has five minutes to understand a complicated subject. Stories can get their attention and the chance to offer real data, real context, the complicated picture that is the patent litigation landscape. I have the impression that the Congressional leadership has become more aware of the more problematic aspects of the legislation.

I hope this opens the door to narrower, more targeted bills that have been introduced in both the House and Senate that would address problematic and abusive use of patent demand letters without weakening patent protection for all.

That would be a just conclusion to the story of recent patent legislation.


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Join the Discussion

6 comments so far.

  • [Avatar for Eleanor Meltzer]
    Eleanor Meltzer
    November 13, 2015 03:40 pm

    Laurie – Wonderful article. Your FTC example makes an excellent point. That well-funded infringers can successfully identify themselves as victims of over-zealous patent owners argues for confronting every instance of perspective legerdemain with a barrage of facts.

  • [Avatar for David Stein]
    David Stein
    November 12, 2015 06:17 pm

    Hear, hear. (And the lapel comment was good-natured ribbing – your argument in MCM v. HP was quite cogent.)

  • [Avatar for Edward Heller]
    Edward Heller
    November 12, 2015 05:56 pm

    David, well, I do care about quite a few other problems in patent law. It is just that I cannot do anything about many of them right now. However I can cheer-lead the likes of Jean Quinn and Laurie Self who are carrying on the good fight for a patent system where patents matter.

    But I also care about the lack of injunctions, the lack of treble damages, the lack of ease of proving reasonable royalties, the inability to negotiate prior to somebody filing a DJ action, the mistake of Aro II that introduced an unheard of scienter requirement into contributory and inducement infringement, and the out and out lies by big companies that somehow litigation costs in defending a patent lawsuit are high because of something the patent owners are doing when in point of fact it is the constant objective of defense counsel of big pocket infringers to run-up the cost as best they can.

    Actually, defense litigation counsel cannot be all that enamored of IPRs because they undermine their main business.

  • [Avatar for David Stein]
    David Stein
    November 12, 2015 04:25 pm

    Edward, I feel like if I met you in person, I’d see you wearing an “Ask Me How I Feel About IPRs” button on your lapel…

    Kudos for this great article, Laurie. Anecdotes can be powerful illustrations of a generalized trend – but it’s commonplace (and particularly in the patent reform debate) for people to generalize their experience into everyone’s experience.

    Exhibit A: Mark Cuban’s perspective, revealed in the interview.

  • [Avatar for Edward Heller]
    Edward Heller
    November 12, 2015 04:10 pm

    Laurie, godspeed and good luck on bringing your story to congress.

    What is your position on IPRs? Good for the patent system?

    FYI, I represent MCM in MCM Portfolio LLC v. HP now pending decision on the constitutionality of IPRs.

  • [Avatar for Anon]
    November 12, 2015 01:28 pm

    Did you touch base with Ron Katznelson while writing this story?