Richard Lloyd

Just as IP has moved up the corporate food chain over the last decade as businesses have attached more value to their intangible assets, so it has also become a far more significant area of academic study. Anyone who watched the smartphone litigation wars unfold, kept track of the Supreme Court’s opinions in a series of patent cases and has had the stamina to follow 10 years of patent reform in the US Congress is fully aware that IP, and patents in particular, has been catapulted onto the front pages in a way that it rarely was before.

As Professor John Whealan of George Washington University outlined on a panel at the IPBC Global last summer, IP has gone from a 3rd tier subject in legal scholarship - where it was rubbing shoulders with the likes of admiralty law - to a 2nd tier topic today. It may not have the same cache as, say, constitutional law, but it undoubtedly enjoys a loftier profile than it once did and most likely pulls in a bigger share of research funding, much of it from corporate sources, than was the case a decade ago.

But this elevation in profile and resources has also brought its own pressures and accusations of researchers being in hock to corporate donors. You don’t need to be in this industry very long to hear whispers that so and so professor is in the pocket of big tech or such and such’s anti-patent reform stance happens to align perfectly with their donors’ advocacy priorities.

That is why the IP community should broadly welcome the recommendations about IP research and transparency in a recent paper by a group of IP professors including Robin Feldman, Mark Lemley, Jonathan Masur and Arti Rai. At the same time, though, the authors should not be surprised at a certain scepticism from some quarters.

Open letter on the ethical norms of IP scholarship details the problems of outside interests skewing academic research. It proposes nine guidelines for the IP academic community to follow which are designed to help promote openness around any monetary or related inducements, reduce the potential for overt or subconscious bias and to encourage, to the fullest extent possible, the disclosure of the data underlying any research.

Feldman and Lemley are two of the highest profile IP academics in the US and, it’s fair to say,  have views that are often aligned with leading, patent-sceptic members of the tech community. Both, for instance, signed on to a letter to Congress indicating their support for patent reform to help curb what they view as excesses in the litigation system. Lemley also juggles his academic career with a private practice at the law firm Durie Tangri from where he has advised Google. His relationship with the search giant was highlighted in 2012 during the company’s case with Oracle in which Lemley was not advising but had made comments in the media and on Twitter relating to the case while not disclosing Google was a client. That reflects the kind of sensitive subject this has become.   

I was keen to get some more feedback from academia on the paper and the issue of disclosure in general. I contacted a couple of academics, Professor Dennis Crouch of the University of Missouri and Professor Michael Risch of Villanova, both of whom are respected figures in the patent community and are generally seen as balanced in their views.

I asked Crouch, who also runs the widely-read PatentlyO blog, if he thought that self-regulation could be made to work. Here’s what he had to say:

I think that self-regulation is a good step forward.  I should note here that these ethical and bias issues at stake in IP scholarship are the same in other areas of law.  I believe that the better approach is to more broadly create better ethical norms that apply to all law faculty through the schools.  This could be regulated as part of the ABA accreditation process. Journals (including ours) also have power in this world to require disclosure of biases prior to publication.

Crouch provided feedback on a draft of the paper but was not one of the professors who signed on to it, partly because he is working on his own disclosure guidelines for PatentlyO.

Risch also provided comments on a draft of the paper but also did not sign the final version. He admitted that he was in two minds over it for the following reason:

I agree with the primary body of the article, for the most part. My concerns are that it is both under-inclusive and over-inclusive. Under-inclusive in that it doesn’t require disclosure of shareholdings, though most conflict of interest policies do. Over-inclusive in that it holds as ideal “generalised” institutional funding rather than viewpoint funding. My view is that long as sources are disclosed, viewpoint is irrelevant to institutional funding.

I also approached Mark Lemley for comment, but as at the time of publication of this blog he had not responded.

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. Their calculation - $29 billion for the year 2011 – has been cited again and again by those pushing hardest for patent reform, even though RPX, which provided the data but has not made it public, has put the cost for the same year at less than $10 billion. Many in the patent community would view the Bessen and Meurer paper as reason alone to bring in closer scrutiny of IP research.  

As Crouch suggests, these recommendations are probably best viewed as a step in the right direction. At the end of their paper Feldman, Lemley, Masur and Rai urge legal institutions like the American Bar Association or the American Association of Law Schools to become actively engaged in developing ethical guidelines for academics.

That would seem sensible. Anyone with just a cursory knowledge of British newspapers over the last 30 years would be aware at just how abjectly self regulation can fail, leaving the UK stuck with a rabid pack of tabloids who proudly live by the maxim: “Don’t get it right, get it first.” No one is suggesting that IP scholarship in the US is going the way of the British red tops, but as its stature in academic circles and beyond looks certain to only grow, a framework for full disclosure in any patent research must be encouraged.