Is the Media Convincing the Public that the Patent System is "Broken"?

It's been common knowledge that, generally, as a subject becomes more esoteric, the public relies more greatly on mainstream press coverage to formulate opinions. The recent media coverage of the U.S. patent system has caught the attention of scholars, practitioners and entrepreneurs, where commentators have increasingly referenced media coverage that casts the patent system in a negative light (e.g., "bad" patents, opportunistic litigation, etc.). While some suggest that the coverage accurately reflects fundamental systemic problems, others believe that some media accounts are inaccurate, or at least overstate problems in the system.

Lisa A. Dolak and Blaine T. Bettinger, who have previously looked at media coverage of patent-related issues, have released a study titled "The United States Patent System in the Media Mirror ." The 67-page report looks closely at media coverage and its' effect on readers, and provides valuable insight and perspective on the increased calls for patent reform.

Among other things, the article addresses the following questions, as they were posed to the study's participants:

How is the patent system portrayed in the item headline (based on your quick impression after reading the item headline) – would it be likely to make an average person view the patent system more favorably, less favorably, or neither, and if “neither,” is it because the headline is neutral? Or balanced?

How is the patent system portrayed in the item body (based on your quick impression after reading the item body) – would it be likely to make an average person view the patent system more favorably, less favorably, or neither, and if “neither,” is it because the headline is neutral? Or balanced?

Regarding the headlines, the study found that 95% of all items in the dataset carried a “neutral” headline, 4% bore a “negative” headline, and fewer than 1% portrayed the patent system positively. As an interesting side note, the study singled out the Financial Times as having the largest number (13%) of overtly "negative" headlines regarding the patent system.

Overall, the “body portrayals” were more negative than the headlines. Specifically, the study found that while 2% of all of the items in the dataset portrayed the patent system in a positive light, the percentage of items which portrayed the patent system negatively was 15% (with the Financial Times clocking in at 30%). In each case, the individual newspaper “body portrayals” were similarly “more negative” than their headlines, overall.

The “news” item body portrayals were slightly more negative than the headline portrayals, with 93% of news items being neutral, 7% negative, and no news items that portrayed the patent system positively.

With unsigned editorials, 70% of all the unsigned editorials in the dataset had a neutral headline while 30% communicated a negative headline. Again, none of the headlines from the unsigned editorials portrayed the patent system in a positive light.

Regarding the relative prevalence of positive messages in all items, the following messages seemed to resonate in the media coverage:

• “Institutional actors are taking steps to improve the patent system” - 30%
• “The patent system is necessary to spur innovation” - 27%
• “The patent system is not in need of significant reform” - 22%
• “The patent system is important for U.S. economic vitality” - 13%
• “The Federal Circuit has brought needed stability to patent law” - 3%

Regarding the negative messages in all items, the following messages were the most prevalent:

• “Poor patent quality” - 17%
• “Patents shouldn’t be enforceable by those who don’t practice the invention” - 15%
• “The patent system needs reform” - 11%
• “The patent system stifles innovation” - 10%
• “The USPTO is overtaxed/underfunded” - 7%
• “Patent litigation is too prevalent/costly/slow” - 6%
• “The patent system permits extortion/litigation abuse” - 6%
• “The definition of what can be patented is too broad” - 5%
• “A patent on single invention can result in out-of-proportion injunction/damage award.” - 5%
• “The patent system is skewed in favor of patent owners.” - 4%

The authors conclude with the following:

Recent major newspaper content presents, overall, a considerably negative depiction of the U.S. patent system. We observed some anticipated differences between news and editorial coverage, in this regard, and some not-so-expected similarities and differences among the newspapers we examined. By systematically cataloguing and analyzing media representations relating to particular issues, we also gained insight into what the media-consuming public learned about perceived problems and attributes associated with the patent system.

Given the esoteric nature of patent law, media portrayals have particular “sway” over public attitudes about the patent system. This study provides a unique analysis of the media’s recent representations of the patent system to reveal, perhaps for the first time, a glimpse into the public’s “legal knowledge” of the system, based upon those portrayals. This information will be of particular use to attorneys, legislators, or other individuals who will interact with a media consuming public that has been exposed to a primarily negative portrayal of the patent system.

View/download a copy of the draft report from SSRN here (link).

See also, "Ebay and the Blackberry®: A Media Coverage Case Study" (link).

While it isn't necessaily patent related, the NYT carried the following article, titled "Unintended Consequences: Why do well-meaning laws backfire?" - it's worth a look.