"Despite our differences, we all share concern that an increasing number of patent owners are taking advantage of weaknesses in the system to exploit their rights in ways that on net deter, rather than encourage, the development of new technology,”i.e., abusive patent behaviour by non-practising entities. In response, the signatories propose “six reforms, which together will help reduce the cost of patent litigation and expose abusive practices without degrading inventors’ ability to protect genuine, valuable innovations.”
It is not this Kat’s intention to weigh in on the merits the reform proposals set out in the letter. Kat readers are urged to read the letter and reach their own conclusions. Rather, this Kat would like to dig down deeper on the implications that flow from the fact that 60 IP law professors signed the letter intended for members of the U.S Congress. Let it be said that among the signatories are some of the most distinguished scholars in the field of patent law. This Kat may agree or disagree with the findings and arguments reached in their research, but he has benefited greatly from reading their studies. However, the point here is not whether the signatories are right or wrong on the substance of their letter. Rather, this Kat wants to consider further the significance of this collective act, whereby IP academics have come together for the purpose of expressing an agreed-upon view intended to influence congressional legislation.
First, consider the academic context in which these IP scholars operate. When this Kat, much to his surprise, received a letter of acceptance to the undergraduate college of his choice back in the 1960s, he was moved by (and still recalls to this day), the declaration in the insert to the letter. It went something like—“we welcome you to this Community of scholars”. The community was the sum total of the great faculty on campus; the scholarship was, however, very much an individual act. Diversity, and not intellectual consensus, was the hallmark of such a “community of scholars.” I am probably naïve, but that credo has stuck with me as expressing the essence of what the higher education experience is meant to be.
I recognize that law school education in the U.S. is not a first-degree liberal arts program. I also recognize that law is a profession as much as (or even more so than) a subject-matter for pure academic research. But with all of that said, what do we make of the fact that (at least some) of our leading IP academics have joined together to engage in legislative lobbying? (The signatories may well disagree with this characterization, as they write—
“[W]e are motivated solely by our own convictions informed by years of study and research that the above proposals will on net advance the best interests of our country as a whole.”Under this view, if it is lobbying, it is of the altruistic kind). If one wants to lobby, that is of course fine but, to do so, perhaps the better place is in a think tank, a member of the administration, or as a consultant or industry spokesperson. To the extent possible, an argument can perhaps be made that members of my “community of scholars” should remain removed from these sorts of activities.
Secondly, there is the matter of the weight to be accorded to the letter. Let’s begin with a trivial question: why is it (much) more likely that Congress will pay more attention to this letter than to a situation in which this Kat convinces 60 of his neighbours to sign a letter advocating the very same position? The answer is obviously because the signatories of this letter are well-regarded IP law professors. This professional status gives the letter the aura of authority that is absent in the letter signed by this Kat’s neighbours. But the authority that flows from the status accorded to our IP academics has multi-faceted implications in connection with the letter.
A third issue is the dichotomy between academic thought and action. Here again, the issue is the nature of the authority underlying the letter. The thrust of the letter is not primarily to promote intellectual debate over the assertions made therein, but to propose a course of concrete action which, it is claimed, will improve the patent system in the service of enhancing the development of technology. From this vantage, however, it may be only fair to expect that the signatories have some hands-on familiarity with the system that they seek to meliorate. How many of the signatories have sought patent protection for an invention or drafted an application for registration of a patent? How many have had a venture stalled by alleged abusive patent-related actions by third parties? How many have been engaged in a commercial negotiation? How many have been involved in a patent dispute, especially when the other party was a so-called NPE? This Kat simply has no idea with respect to the signatories of the letter. The issue is whether the answer to these questions is germane to the authority to be accorded the letter.
Nothing above is intended to suggest in any way that IP scholars should not join together to express their collective opinion on matters of interest, if they so wish. That is, of course, their right. Whether such an action is free from all doubt is, however, is a separate question.