Patent Owners Don’t All Hate IPRs
The patent policy debate can get surprisingly passionate at times. And sometimes, that passion seems to make people impervious to evidence that contradicts their policy positions.
For example, Gene Quinn recently posted “Patent owners do not like IPRs despite what Bloomberg Law, AIPLA study says.” Gene is upset because Bloomberg BNA and AIPLA just released a nationwide survey of patent attorneys and agents asking about their experiences with inter partes review at the Patent Trial and Appeals Board.
Bloomberg BNA and AIPLA did a survey of attitudes towards inter partes review (IPR). Among attorneys representing patent owners, 48% said that they thought that over all, inter partes review has been very beneficial. This includes in-house counsel. 45% of in-house counsel whose patents had been subject to IPR said that IPRs are very beneficial.
Personally, I find that result pleasantly surprising. I would have expected the numbers to be much lower. Gene, however, cannot accept the result. Faced with evidence that contradicts his own certainty that all patent owners hate IPRs, he simply denies that the survey has any validity:
Simply stated, the conclusions reached defy common sense, do not comport with the experience of actual patent owners, and the survey does not hold up to even cursory scrutiny.
It is impossible to believe that patent owners think it is beneficial to have their patents challenged after they spent 5 to 10 years to obtain them at a cost of many tens of thousands of dollars. It is absurd to believe that patent owners think it is beneficial to have their patents challenged when a typical challenge will run anywhere between $500,000 to $1 million in attorneys fees through conclusion. It seems doubtful that a poll of actual patent owners would ever find it to be beneficial to have to defend a patent that is supposed to be presumed valid in a proceeding where the patent will not be afforded any presumption of validity.
As I confirmed with Gene, he has never done a survey of patent owners, and he isn’t aware of any other similar survey. When he talks about “the experience of actual patent owners,” he’s referring to actual patent owners that he has met or heard from personally. Certainly, Gene talks to a lot of people; it wouldn’t surprise me if he personally has spoken with more people than responded to the survey.
The problem is that it seems unlikely that those “actual patent owners” are representative of all patent owners generally. The survey at least attempted to gather opinions from a random sample. And given the diversity of patent owners, including large and small companies in an enormous variety of industries, it’s entirely possible that many patent owners feel that IPRs are a good thing.
I do note that the survey’s finding is actually a little stronger than Bloomberg reports. The attorneys were asked to rank from 1 to 10 to describe how beneficial they feel that IPRs have been, with 10 being the most beneficial, 1 being the least. 48% of respondents who most recently represented patent owners in an IPR gave a rank between 7 and 10. But if you add in the respondents who ranked it as a 6 (which is still more beneficial than harmful), you get 65% of attorneys representing patent owners. If you only look at in-house counsel in that group, it’s 70% who ranked IPRs as 6 or better.
That is, in a survey of patent attorneys with recent experience with IPRs, a solid majority of attorneys representing patent owners said that they think IPRs are more beneficial than harmful.
Is the survey biased? Bloomberg has no agenda, it’s a news organization. And AIPLA is hardly biased against patent owners. I don’t think it’s fair to impute a bias to either organization.
Does the survey accurately reflect opinions in the patent community? That’s not easy to answer. Here’s what the survey report says:
The explanations in the previous section and other conjecture in this paper are intriguing and call for more study of the phenomena recorded in the results. And a real-data statistical analysis of the link between outcomes in the PTAB and district court dispositions is still wanting.
But in general, the results indicate that IPR proceeding participants appear to be settling into the practice, now in the fifth year of its availability. And the gap between attitudes of patent owners and petitions [sic], as reported anecdotally in the media in the early days of AIA proceeding implementation, appears to be closing.
The survey itself says that more study is needed, so we can’t say whether the results are representative of the larger population. But this survey result certainly suggests that patent owners aren’t unified in their opinions of inter partes review; we should be cautious about generalizing the positions of patent owners.
Patent policy is going to continue to be debated for the foreseeable future. In order for that debate to be productive, we need to be willing to look at the evidence, even if that evidence contradicts our beliefs.
At a high level, we all agree that patent policy should support innovation and help grow the economy. Our goal should be to find the best policy to achieve those goals most effectively, even if that policy isn’t what we personally thought it would be.