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Joff Wild Responds to "End Software Patents"

By Two-Seventy-One Patent Blog

Understandably, great exception was taken to the bombastic claim that the software industry spends $11.4 billion dollars on patent litigation. From this morning's post:

Clearly, what the [End Software Patents] authors have done is take 55 [the number of cases alleged to be filed each week], multiply it by 52 [weeks] and then multiply that figure (2860) to get the $11.4 billion. In other words, they have assumed that every single case filed in the US ends up going to a final decision at the first instance. However, the truth is that the vast majority of patent suits are settled well before they get to court and so the litigation costs incurred are significantly less. Any patent attorney that End Software Patents had cared to ask could have pointed out this simple truth. But maybe it is just a litte too inconvenient.

It gets worse than that, however. At the end of the third bullet point, the authors of the report state that the source for their statistics is a debate at the Brookings Institute held in 2005. One of the people taking part in the debate was the very same Dan Ravicher of the Public Patent Foundation who is credited with the stat about 55 software patent suits being filed each week. But, in fact, according to the transcript, he said no such thing. Instead, he said (at page 33): "How many patent lawsuits are filed every week? And Brian [Kahn, of the University of Michigan] already hinted at this. That's about 55 [inaudible]. Now, what percentage of those lawsuits are software-related? A small percentage, so they're not all software patents. But we still have an increase in patent litigation. And the cost of defending oneself from a patent lawsuit, as Brian indicated the statistics show, from a year or two ago, I think
that data came out, $2 to $4 million for an average size patent case."

[W]hat we have here is spin, pure and simple. End Software Patents understandably wants to make a splash. It is the new kid on the block and feels it has to get its name out there so that it can start to have its voice heard. Unfortunately, however, it has chosen to do this by quoting figures that bear very little relationship to reality. Putting aside the various ethical issues in producing such dodgy data, what End Software Patents has done is wrong because these kinds of figures grab headlines and guide the debate. It is no coincidence that the organisation makes that $11.4 billion point one on its press release announcing the study's publication.

Read the post in its entirety here (link)

(Update)

. . . and read more on the fray in the comments below

Full post as published by Two-Seventy-One Patent Blog on February 29, 2008 (boomark / email).