Innovation Versus Information: How the Shifting Definition of ‘News’ and a Media-Shy IP Community are Driving the Anti-Patent Narrative

“Unless patent owners and innovators wise up, as newsrooms continue to decrease in size, we should all expect more, not less, negative media coverage about patents.”

When did it become necessary to triangulate the news in order to figure out what was really happening in the world? Many media outlets have significantly slowed down with respect to reporting on the news and are increasingly ramping up on opinion and conjecture in its place. Why that happened isn’t terribly difficult to understand, and it is likely going to only get worse.

Too Much ‘News’ upon a time there were few sources of information, with only several TV channels and a small handful of national newspapers were competing for eyeballs. The rise of the 24/7 news cycle brought on by a proliferation of cable news stations with timeslots to fill changed the dynamic. The widespread adoption of Internet technologies and the World Wide Web also made it possible for people to get news throughout the day on their own terms, again making it less necessary for those seeking news and information to go to one of the chosen few industry leading sources. Today, many get news from myriad online sources, social media platforms, YouTube videos and more. There is so much information available, it is almost easy to mistake the information that is available as news.

U.S. newspapers have shed half of their newsroom employees since 2008, according to a new Pew Research Center analysis. And total newsroom employment since 2008 for all employees in the news industry has dropped 23.5%. This drop is easy to understand and even easier to explain. It is increasingly difficult to monetize reporting the news, and reporting news is a capital intense enterprise.

Everyone can have an opinion. Being in the right place at the right time to collect the facts necessary to report on a recent event requires real resources. It is no wonder that so much of what is characterized as “news” is, in fact, opinion and conjecture. In fact, watch any cable TV channel in primetime any night of the week and it is panel after panel analyzing events.

Opinion, as informed as it may be, is not fact. In order to have any hope of figuring out what really happened, one must watch multiple news reports and read numerous sources – and that is when you seek black and white facts for which there is supposed to be an objective truth. Of course, the belief that one can triangulate the truth through resorting to popular sources of information supposes that even those who have the time and are willing to make the attempt have the ability to find the truth in a sea of opinion and bias. Often, that is not the case.


Cooperate or Be Co-opted

As newsrooms have decreased in size over the last 12+ years, and are experiencing significant contraction yet again due to the coronavirus (see here, here and here, for example), it will continue to be difficult for newsrooms to actually report the news, which requires a real investment in human capital, significant resources and time. This is why reporters (and bloggers too) rely on the cooperation of those who are in a position to share news of importance.

Not to put too fine a point on it, but the cooperation of patent owners and innovators has been wanting (to be polite).

Perhaps the most professionally frustrating thing I’ve had to deal with in all my years at IPWatchdog is knowing things and not being able to write them. While those who advocate for a weaker patent system are extremely willing to share their stories about how patents are being misused and abused by nefarious patent owners, innovators who rely on strong patent rights as the lifeblood of their enterprises generally refuse to communicate, or do so only on background or after there is a promise that their story not be used.

Those who read IPWatchdog may know that the Cleveland Clinic has stopped investing in medical diagnostics as the result of the U.S. Supreme Court’s decision in Mayo v. Prometheus and the Federal Circuit’s expansion upon that ruling to an absolute per se rule that prevents the patenting of medical diagnostics. The reason is simple – investors won’t provide capital, so these innovations cannot be commercialized. Whenever we write about this, we cite an interview with Congressman Steve Stivers (R-OH). What Stivers told IPWatchdog on the record is well known in policy circles within the industry, but the Cleveland Clinic has refused to go on the record directly despite speaking on at least several panels (for which we have been unable to get a transcript).

Fear of Telling the Story

The story of the Cleveland Clinic’s reluctance to tell their story far and wide is hardly unique. Generally speaking, innovators do not want to tell their story. Sometimes they have hired an attorney who is advising them not to speak with the press. Sometimes they are afraid that if they tell their story they will become a target of those companies that challenge patents and attempt to vilify patent owners. Sometimes they don’t want investors to know that they view their patents as worthless. The common denominator is always that they fear their story getting out, the importance of a strong patent system is self-evident, and others need to just tell Congress or the courts to fix the problem.

For those who are willing to share their stories, they often require arms-length deniability. To them this means they will point you to something interesting and then want you to dig into a voluminous file in search of what they believe is a nugget that “you might find interesting.” Inviting a reporter (or blogger) to spend tens of hours poring through documents to find something that might be interesting is a non-starter. Those who have news that they want covered create a dossier that is easy to follow, they don’t create a game with 99 levels to get to the finish line. If the reporter (or blogger) finds what is presented interesting then they will pick it up and run with it, but expecting that you will be able to point to something and magically kick off a comprehensive round of investigative journalism is wildly naïve, at least for a patent / innovation story.

Another example is the coronavirus narrative. What the media fails to explain, at least partly because IP stakeholders are not doing enough to sell them the story, is why there is an insufficient number of reliable diagnostic tests that can be deployed. As those in the patent industry know, beginning in 2012, the United States Supreme Court made it extremely difficult to patent medical diagnostics with their decision in Mayo v. Prometheus. The United States Court of Appeals for the Federal Circuit then extensively expanded upon that decision and has created an absolute per se rule that prevents the patenting of medical diagnostics.

Testing for the coronavirus is a medical diagnostic. The coronavirus is novel, which will require a new diagnostic that must be vetted for accuracy and reliability. Without the ability to patent these types of innovations, the leaders in medical diagnostics have abandoned their work because investors do not provide capital. Therefore, like the Cleveland Clinic, because of the Supreme Court and the Federal Circuit, fewer research hubs and universities have been working on the precise medical diagnostics that we now need over the last decade. U.S. citizens should be angry about that, but they have never heard the story.

Wise Up, or Expect More Anti-Patent News

Unless patent owners and innovators wise up, as newsrooms continue to decrease in size, we should all expect more, not less, negative media coverage about patents from what remains of the popular press. The corporations and entities that find it useful to weaken the patent system are not going to suddenly stop funneling stories to newsrooms and reporters now that it is becoming easier to influence news coverage.

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Join the Discussion

8 comments so far.

  • [Avatar for Jacek]
    May 10, 2020 08:10 pm

    The “Silence of the Lamb.” (Inventors) you are talking about is part of the typical human approach. Nobody wants to be a fighter and risk his/her neck out there. People prefer a quiet life and hope that the storm will roll over and not disturb their peaceful existence.
    To Stik your neck out, you must be ready to sacrifice. The amount of abuse must reach a specific boiling point to enrage many and provide the energy for change.
    In the meantime, the early dissidents will pay an exorbitant price.
    Let’s not be fooled into believing that this country is safe for who questions the status quo. It scares people.

  • [Avatar for Jacek]
    May 10, 2020 03:05 pm

    The problem you raised in a universal one for every aspect of the U.S. public life hollowed out by the big tech. Newspapers decline directly connected to the success of Google and Facebook who do not produce (finance) any content and are siphoning in all revenue which used to support American newsrooms. (This blog is commenting on the same impact of the same big tech killing American innovation.)
    Whenever we go, in every sphere of American life and economy, we see the same damage caused by the same untamed beast to every aspect of American Life. I think it is apparent to everybody present here that the future of this country depends if we will brake the beast and stop money influence on U.S. politics.
    In E.U., the newly implemented copyright laws will reverse the damage and return the income to the creators. Here in the U.S.? There is no hope for the common sense E.U. approach to solving the problem. As your recent interview with one lawmaker involved in new I.P. legislation shows, Amazon’s safe harbor arrangement with our politicians will not be subject to discussion. Lets Fakes flood America, and we pretend that we know nothing about it.
    In India, for example, Amazon is responsible for fakes.
    Please Do not blame inventors, they are inventors, not Reporters, and they focus on their part. Our inventor’s plight is a scandal showing the corruption of our politics. “Citizens United” The roots of the beast must be weeded out for the patient to recover.
    If we will change anything, it is only through reforms to our politics. Let’s focus on that.

  • [Avatar for Anon]
    May 4, 2020 12:53 pm

    but it showed me the importance of remaining sceptical.

    I completely agree.

    Being critically minded means being skeptical on all inputs.

    That being said, the ‘state’ of journalism qua norms of being a journalist have been said to have been in a LONG decline. To this, I attribute directly to the parallel long decline in the US education system, and NOT just at the view expressed by stepback above. My condemnation of the US academic system goes deeper and goes more to the college level “liberal arts” type of take-over in which the actual teaching of BEING critically minded has been supplanted with a non-meritocrazy [sic] of ‘how well you adhere to the belief systems of those in charge.”

    It is no accident that when liberal arts lost that sense of merit of critical thinking, that ‘Infotainment’ and ‘how well do you adhere to the beliefs of those in charge’ become the new norm, and what you see is what you get.

    For me, the ‘distrust of experts’ is NOT due to the encouragement of governments. It is a natural result of the “dumbing down” of experts coming out of academia that no longer teaches how to critically think (regardless of End Philosophy).

  • [Avatar for Gerry Elman]
    Gerry Elman
    May 4, 2020 05:30 am

    We need a Lorax to speak for the Patent System.

  • [Avatar for Peter Groves]
    Peter Groves
    May 4, 2020 05:11 am

    Thanks for a very thought-provoking and thoughtful piece, Gene. I know that I would have been unable to resist digressing into politics, which would detract from the important message you are communicating. We have always had to triangulate the news, because nothing we see in the media is pure fact, it has all been filtered by a journalist. I remind myself never to believe anything in the media implicitly, recalling years ago when I spent a lot of time and effort briefing a leading journalist on a national newspaper only to find her finished article bore no resemblance to what we had given her – of course that was her prerogative, but it showed me the importance of remaining sceptical. The patent system, whether in the US or Europe or anywhere else, is not perfect, but any debate about it has to be reasoned – what the UK government a few years ago referred to as “evidence-based policy-making” in which it undertook to engage when changing IP laws, only to pursue what cynics have referred to as “policy-based evidence-making”.

    I think in both our countries the government has encouraged distrust of experts. There are signs that coronavirus has brought experts back into favour, a little at least, in the UK, but it is clear that their input is needed to ensure that the role played by the patent system in encouraging the innovation that is so crucial at this point in human history.

  • [Avatar for Pro Say]
    Pro Say
    May 3, 2020 10:34 pm

    The only thing necessary for the triumph of evil is for good men and women to say and do nothing.

    ? Edmund Burke

  • [Avatar for Anon]
    May 3, 2020 03:27 pm

    I would posit one caveat to this story:

    Speaking up does NOT mean “to the morgue” and its equivalents.

    That type of speaking up is actually to the benefit of Efficient Infringers who would love nothing more than to compete on non-innovation terms.

  • [Avatar for stepback]
    May 3, 2020 03:13 pm


    All too true and sad.

    But the deeper problem is the dumbing down of the American public.

    You hear the politicians doing a Dick and Jane first grade primer on TV: “See Spot. Test, test, test oh good dog Spot. Dick and Jane are happy. Test, test, test. Dick and Jane are safe because we said “test” three times. Then we clicked our heels together. Dick, Jane and Spot are back in Kansas, happy and great once again.”

    Dare we say that less than 2% of the population understand what “test” means?
    Dare we say that our “Supreme” leaders believe “test” means plucking a leaf off a tree? Conventional, well understood and routine. No inventive concept to be spotted here folks. Go home and shelter your heads back into the sand again.

    It gets even tougher when “test, test, test” involves statistics. Does the test they just gave you (be you so lucky) pass the 3 sigma reliability criteria? Huh? What’s a sigma? What’s a Gaussian curve? Why is corona inherently required to abide by a Gaussian curve? Disconnected minds don’t want to know.

    Don’t put the blame on just the journalism majors. We’re all to blame.

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