Patent Litigation Cost US Business About A Trillion Dollars In A Quarter Century, Outweighing Benefits

from the trolls-strike-again dept

Techdirt recently wrote about the ever-growing flood of patents being granted by the USPTO. As we've emphasized, more patents do not mean more innovation; nor do they necessarily lead to greater overall benefits for business. That's clear in an important new paper from a team including James Bessen, whose work has been mentioned here several times before. It builds on the approach described in the 2008 book "Patent Failure" by James Bessen and Michael Meurer, and seeks to estimate both the private costs and private benefits accruing from patents in the US during the years 1984 to 2009. Here's how the costs are obtained:

We obtain lower bound estimates of the private costs of patent litigation by performing stock market event studies around the dates of lawsuit filings. This approach provides estimates of total cost that are greater than direct legal costs and include the costs of lost business, the costs of management diversion, and anything else that reduces the wealth of a firm as the result of defending a patent lawsuit.
As for the benefits, these include:
upper bound estimates for patent rents, the stream of additional profits that firms gain from patenting, including gains from strategic uses of patents.
As the paper explains, this produced the following results:
We have direct aggregate litigation cost and aggregate rent estimates for 1984-2002. During this period, we estimate about $240 billion in private costs and about $195 billion in private benefits. Hence, private costs exceed private benefits by about 24%. Assuming average growth in private benefits during 2002-09, we estimate about $385 billion for 1984-2009. Private costs exceed private benefits by about 29% over this longer period.
One estimate by the researchers puts the total costs at about $538 billion, while another obtains an even more eye-watering $1.49 trillion. The latter figure is consistent with previous work from Bessen, done with Michael Meurer and Jennifer Ford, which suggested that patent trolls -- or "Non-Practicing Entities (NPE)" -- are alone responsible for $500 billion of costs to US companies.

The new study notes how the patent landscape has changed in recent years:

we also identify rapid growth in NPE lawsuits, in lawsuits that include a patent in the Computers/Communications technological area, and in lawsuits brought against alleged infringers in the non-manufacturing, software and telecommunications industries.

While patent stocks have increased at about 6% per year, the values of patents and the associated rents per patent have not changed significantly. The result is a widening gap between the private costs of patents and the private benefits received by publicly listed firms. ... the upward trend in private costs is far lower if we restrict attention just to cases where a practicing entity (PE) files suit. Indeed, without NPE cases, aggregate private benefits would likely exceed aggregate private costs in the years since 2002.
From this we see that one of the key problems that needs fixing in the US patent system is the parasitical behavior of NPEs. Pity that, once more, it looks like this isn't going to happen.

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Filed Under: cost, economics, patents


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  1. identicon
    staff, 30 Apr 2014 @ 7:05am

    more dissembling by Masnick's puppets

    'Patent Litigation Cost US Business About A Trillion Dollars In A Quarter Century, Outweighing Benefits'

    No doubt, if you are an infringer. As they say, crime does not pay.

    Can you say dissemble? All this talk about trolls and so called ‘patent reform’ is just spin control by large infringers and their paid puppets to cover up their theft.

    http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=276448190& ;m=276545654&live=1
    http://www.npr.org/2013/11/06/243022966/secret-persuasion-how-big-campaign-do nors-stay-anonymous

    The patent system now teeters on the brink of lawlessness. Call it what you will...patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. It’s a pure red herring by large invention thieves and their paid puppets to kill any inventor support system. Their goal is to legalize theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To infringers the only patents that are legitimate are their own -if they have any. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    It’s about property rights. They should not only be for the rich and powerful -campaign contributors. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius (anyone know how to make a Stradivarius violin?) and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our families and communities. To kill or weaken the patent system is to kill all our futures. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own. Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property.

    Prior to the Supreme Court case eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the eBay decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls and so-called patent reform, please see http://truereform.piausa.org/default.html#pt.
    http://piausa.wordpress.com/
    http://www.ipwatchdog.com/2014/04/18/for-whom-the-bell-tolls-the-us-pate nt-system/id=49067/
    http://www.hoover.org/publications/defining-ideas/article/142741

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