Inadvertent Argument Against Peer-to-Patent

Lawrence B. Ebert
date: Thursday, June 28, 2007

In an article titled "The Patent System is Not Broken" (18 Intellectual Property & Technology Law Journal 10 (December 2006)), Patrick Doody wrote of some patent system reformers:

"The critics consist of a tightly knit group of university professors and non-patent attorneys who are critical of the patent system and who favor weakening patent rights. The critics publish countless articles every year and repeatedly cite to one another's work, if not simply to repeat it or provide a synopsis thereof in a different venue, which gives the impression that there are numerous opinions consistently critical of the patent system. This coterie of most frequently published patent critics is so insular and close-knit that no effective independent review of their work is likely."

Footnote 1 of Doody's article included text about the book by by Adam Jaffe and Josh Lerner, INNOVATION AND ITS DISCONTENTS: HOW OUR BROKEN PATENT SYSTEM IS ENDANGERING INNOVATION AND PROGRESS, AND WHAT TO DO ABOUT IT (Princeton Press, 2004) and states "most articles critical of the patent system published since this book represent synopses of the book in one form or another."

It is correct that certain academics rely on the Jaffe/Lerner book for broad-brush indictments of the patent system. For example, in an article in the Berkeley Technology Law Journal in 2005, four academics, including a professor of law at Yale University, asserted that "Strong patents--particularly in the aggregate--have been shown, both theoretically and empirically, to reduce both innovation and welfare," relying for authority on a working paper by Lerner and on Innovation and Its Discontents. [20 Berkeley Tech. L.J. 1031, 1044]. The idea that intellectual property represents a harm to public welfare is mentioned in 20 Harv. J.L. & Tech. 49 , with Innovation and Its Discontents cited as part of "a broader stream of scholarship." Interestingly, one notes that Innovation and Its Discontents has received favorable notice in a more general context, for example getting a strong endorsement in a paper entitled "Stem Cell Research and Embryo Cloning: Involving Laypersons in the Public Debates," (39 New Eng. L. Rev. 527) including text --Lerner told the New York Times that he felt that "the patent system, 20 years after the reforms, [is] mired in 'the land of unintended consequences."'--

This use of Innovation and Its Discontents in a more general context merits exploration. Ironically, the use of Innovation and Its Discontents in two papers pertaining to the peer-to-patent context illustrates both Doody's general point that academics are simply parroting conclusions of Jaffe and Lerner without independent analysis AND that such repetition illustrates aspects of the downsides to peer-to-patent itself.

In a paper titled "Peer to Peer Meets the World of Legal Information: Encountering a New Paradigm," 99 Law Libr. J. 365 (related to a symposium concerning the thoughts of Robert C. Berring), authors Ethan Katsh and Beth Noveck wrote in paragraph 8:

In their recent book, Innovation and Its Discontents, [FN5] Adam Jaffe and Josh Lerner document many patents that are anything but novel and nonobvious, such as patent number 6,368,227 for "Method of Swinging on a Swing" awarded to a five-year-old boy (subsequently cancelled). [FN6] Or patent number 6,574,645, a patent on a method for drafting a patent. [FN7] The patent awarded to Smucker's for the crustless peanut butter and jelly sandwich is, by now, legendary. [FN8] Jaffe and Lerner describe a patent sought for expirationless options thirty years after economists won the Nobel Prize for the same idea. [FN9]

Footnote 7 states: U.S. Patent No. 6,574,645 (issued June 3, 2003) ("Machine for Drafting a Patent Application and Process for Doing Same"), noted in JAFFE & LERNER, supra note 5, at 144.

In turn, footnote 5 sta