It appears my comment regarding a recent New York Times article on "patent trolls" — and my suggestion that defense lawyers might be the major beneficiaries of the so-called "troll" problem —  has touched a nerve.  

For some reason Mr. Guiliano takes me to task for simply accepting the figures provided in the article and doing some back of the envelope, but nevertheless sound, calculations based thereon.  (In my comment, I simply read and directly quoted what was reported in the New York Times — you know, "All The News That’s Fit To Print" etc.)  It was that article, and not I, that reported: (1) "United States companies — most of them small or medium-sized — spent $29 billion in 2011 on patent assertion cases," (2) "only about $6 billion of that money wound up in the hands of inventors,”  and (3) "As for the other $23 billion, most of it goes to legal expenses…"  (In the article’s defense, it quotes a "study" and its co-author in making those claims.)  If those facts and figures are not correct, take it up with the New York Times and its sources, not me. 

Mr. Guiliano goes on to say, " So, if Mr. Mann had read the report he linked to, he would have learned that the legal costs totaled $6.67 billion, less than 1/3 of his $20 billion figure."  True, I did not read the report, I merely relied on what one of its co-authors had to say about it to a NYT reporter.  If he misrepresents the contents of his own report, and does so to a reporter for perhaps the nation’s best known paper, why is that my fault?

On a more substantive and serious note, the point here is that glib statements about patent trolls, and popular press articles about unsavoury individuals and their lawyers gaming the system, should not be accepted at face value and should not escape critical review. 

Here I simply took a thinly disguised anti-patent-troll article at face value and drew some reasonable conclusions from what was reported.  When that article unintentionally leads to some less than flattering conclusions about the defense bar, the backtracking and explaining begin.

Mr. Guiliano is absolutely correct when he says, " Mr. Mann has not made that claim in his blog post…[he] relied on a reporter’s account of an interview with James Bessen and then did a quick calculation."  Indeed, nowhere does Mr. Guiliano point to any flaw in my calculation.  Instead, the bulk of his post is directed toward showing that the cited study does not actually say what its own co-author said it does, and does not actually mean what its own co-author stated to a New York Times reporter. 

My rationale for my comment is simple;  It is based on face value acceptance of what those in the "anti-troll" camp claim, followed up with some basic arithmetic.  What, pray tell, is the rationale for Mr. Guiliano’s snide comment at the end of his post?

 

 

 

 

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Photo of Philip P. Mann Philip P. Mann

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to…

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to the court (a judge) as well as before juries. In addition to trial court work, Mann has performed appellate work before the United States Court of Appeals for the Federal Circuit.
Mann began his legal career in Chicago and Milwaukee before heading to Seattle where some of America’s most innovative companies were developing new technologies at breakneck speed. Before founding his own firm, he was a member of the Seattle Intellectual Property Law Firm, Christensen O’Connor Johnson Kindness.
Mann is an “AV” rated lawyer by Martindale Hubbell, indicative that he has reached the height of professional excellence and is recognized for the highest levels of skill and integrity.
He holds a degree in Electrical Engineering from the University of Illinois (Urbana) and received his law degree from the Washington University School of Law in St. Louis, Missouri. He is admitted to practice in the States of Illinois and Washington, as well as before the United States Patent and Trademark Office, and in various courts around the country.