Moderator: F.
Scott Kieff, US International Trade Commission and George Washington University
Panelists: Stephen
Haber, Hoover Institution and Stanford University: Good policy making starts
with good research. Literature on patenting lacks the serious empirical work
that exists in other fields; ratio of theory/broad claims to empirical evidence
is unlike other fields, particularly finance.
Academics can broaden and deepen the quantity of research and its
quality.
Jay Kesan, University of Illinois: releasing the data is
important. Nobody else can kick the
tires and look under the hood if you don’t.
Be more skeptical/keep an open mind about other inferences from the same
data.
Alan Marco, USPTO: Help understand which inferences are
justified from the data. Policymakers see a lot of evidence; they agree
w/evidence based policy making, but they too frequently see policy based
evidence making where reports on one side say something completely different
from the other. Need to know how to tell
the good from the bad. Better
communication from academics: in understanding patents through the lens of
patent litigation—self-selected cases aren’t representative of the whole, and
we want to be careful about letting the tail wag the dog.
Joshua Wright, US Federal Trade Commission and George Mason
University: The principal problem is inadequate quality control leading to
overbroad claims. Academy should take
quality control seriously, and limit claims.
If you compare claims allowed to be taken seriously in antitrust, where
norms of scholarship are different—they’re more modest and more tethered to
actual inferences an economist would say are valid. That tethering is absent in
the IP scholarship world.
[Jessica Silbey, for good reason, will hate the implicit
definition of “empirical” at work here as “quantitative.”]
Haber: core problem is that there aren’t enough economists
around, many $20 bills on the ground for them to pick up. (I thought the true economist wouldn’t do
that …) Law faculty haven’t been trained
that way. Economists have upped the game
in political science.
Kieff: has the IP/antitrust interface benefited from the
antitrust literature’s standards or suffered from the deficiencies in IP?
Wright: both are present. The same economists rationalizing
antitrust law are around. Started with
big questions—it’s hard to measure innovation! But advance in industrial
economics has led to do smaller/narrower studies that can allow strong causal
inferences, even if on its own it wouldn’t justify legislation. A drip drip
drip of these can fill a bucket. You don’t believe papers, you believe
literatures. You get literatures by getting smaller projects. Marginal approach was taken in antitrust, but
not enough in patent. Sure, an economist
is likely to say the answer is more economists, but I believe that it’s true.
Haber: Causation is a big deal. One can look at data and
draw many inferences from it, some of them accurate and some spurious. Data analysis w/o theory: perfect example of
this is claims about increased number of lawsuits. People like to draw the inference
is that contestability of patents has gone up and therefore the patent system
is broken. But another inference is that patents are more valuable and more
worth litigating. You can’t figure out which is true (or other explanations)
just with numbers. Unless you’re working from a well defined body of theory in
which case you have less causation to worry about, you need to worry about your
inferences.
Marco: one of the problems of many economists coming in is
that policymakers have high expectations.
Economists tend to be more reserved in inferences, and so that doesn’t
get a lot of fanfare. “How many jobs
does IP create?”—those are the questions that economists can’t really
answer. Gap-filling: policymakers need
to be more patient/understanding: you can have good empirical research or you
can have fast.
Wright: another slam on law professors, sigh: law professors
can get tenure with big ridiculous claims, but economists can get tenure with a
good small contribution. [You’re
all just jealous of my jetpack.]
Kieff: So what are some of those $20 bills, tenure-worthy,
literature-contributing projects?
Haber: Patent trolls: what we know is miniscule compared to
the amount of noise about them. Look at the actual business, specifically: is a
patent troll a financial intermediary or a predator on the innovation
system? Theory of finance would suggest
that intermediaries arise when there’s some market asymmetry creating a
return. In patent space, the asymmetry
is between individual inventors and large firms implementing patents. Is the behavior of patent trolls consistent
w/financial intermediaries, or consistent w/ the mafia? (I’m not sure those are in any way exclusive,
actually, given accounts of how the mafia works—and how the big banks work. I don’t see why an economist would start out
assuming these were distinct models.)
Kesan: that’s a project of mine: are there differences in
the way they settle or take cases to trial?
Marco: Identify the market failure we’re trying to solve
very clearly. A lot of times we take the system as a whole, but there are a lot
of component parts. One area to refine analysis quickly would be to ID
component parts: does patent examination/prosecution affect the way patents are
used later on?
Wright: the source for demand for such research has to be
the legal academy or the government. The
gov’t is more likely to be the source of demand than the law schools. The FTC has played a role in some areas. ID
research questions and testable hypotheses: a good role. Do something modest and descriptive and
contribute knowledge to the world.
Josh Sarnoff: Rule 11 motions—would be important to know, hard
to collect data. We know almost nothing about licensing market, b/c of secrecy
issues—but there’s not a systematic requirement to collect all the data we want
to know; dramatic change at dramatic cost—only gov’t can do that.
Q: funders of research: what should they keep in mind?
Kesan: as quality of scholarship goes down, it’s seen as
more of a political football than normal science. Normal science gets more
funding/attention. Convince funders that
there is normal science to be done.
Haber: innovation policy is vitally important to the US’s
future. Funding of studies of innovation policy by the gov’t relative to the
importance of the task is not commensurate, and thus either the gov’t will do
it or private entities w/vested interests will do it—or no one will do it. Gov’t is better. Federal Reserve funded most of the finance
literature.
Q: we don’t know prices or quantities in the private market
that is crucial here. The influential
work on contracts has mostly been theory, unless there’s a large literature
using private data [Wright disagrees].
What is the policymaker’s role in interpreting academic evidence? If we accept the premise that a lot of this
research is bad, if the policymaker knows it, what does the policymaker do with
that? What’s the standard of disclosure
for the policymaker in relying on evidence?
Haber: ask the question—was this piece of evidence published
in a peer refereed journal or not? Simple metric, easily applied. Plus it’s
never the case that one study is dispositive.
The Q for policymakers is whether there’s a literature whose weight
points to a conclusion.
Wright: there are now literature reviews, and literature
reviews of literature reviews. The difficulty is that most studies observe
either Price or Quantity. Most of the
time here we’re less interested in P or Q and more interested in rate of
innovation or investments made in innovation, and the problem is that we don’t
agree on what a measurement is—harder than measuring prices. But there are some
papers that do this. The observability
of underlying contracts can be difficult but there are many marginal gains to
be had. I can count serious
peer-reviewed research designs in last 15 years on both hands.
Kieff: what framing context would you give journalists or
staffers as background? Sense of
diversity, contestation/testing in the literature.
Marco: also read How To Lie With Statistics—statistical inference
wouldn’t hurt.
Kesan: caution on both sides. When I talk to staffers, I take extra trouble
to disclose the limitations of my studies.
I’ve become sensitized to that after seeing the way my work has been
consumed. If you are a
staffer/policymaker, it’s worth asking academics: what about the other
evidence?
Haber: two things that are low-cost: (1) learn that Google
Scholar exists. Look for a review essay
about a literature that’s been published in a peer reviewed venue. Read the
first five pages, before it’s down in the weeds, and get a sense of the state
of a particular literature. (2) Academics need to meet staffers and journalists
on their turf, not the other way around. We should be better at making our work
more accessible and making our work more available.
Kieff: ideas for organizers of academic work to make their work
more impactful? Should they have a governance structure mindful of their source
of funds, fiduciary or other duties they might owe that might conflict with
independence in writing?
Marco: peer review is still there to correct apparent bias. Economists are notoriously terrible at making
their results understood outside their narrow field. NBER is getting good at putting out 2-page
summaries. Still need to know how
policymakers should be using them.
Incumbent on academics to improve their communication.
Wright: There are reputational sanctions in economics that
don’t exist or exist with less force in law. Everyone high-fives each other and
says the papers are brilliant. But less of a culture of saying a paper is bad
and shouldn’t influence policy. (He does
not go to the conferences I go to.) This
culture developed when law professors didn’t do empirical work. Now, any law professor can run a regression
without a license, and that doesn’t serve academia well. He is for more shaming of law professors.
Marco: who do bad research.
Wright: at least those.
(Ha. Ha. Though he is a very good
public speaker—quite charming.) Need
research that can be replicated; that reduces fights over industry-funded or
gov’t-funded source. That tones down the criticism. There’s a demand for objective interpretation
of results—meta-analysis of fields, similar to literature review.
Kieff: do you think that policymakers should keep anything
in mind when an academic is writing as an academic but also has clients to
serve and owes duties to a client in other contexts? [Somehow I feel that there
is someone in particular being targeted.]
Wright: it happens.
Some briefs are really good, and others aren’t. If there’s empirical information, the
fundamental question is whether the thing is valid. If I can’t see the data, it doesn’t get any
weight.
Kieff: should a reader keep in mind that a lawyer currently
representing a client, paid or unpaid, who has taken a position on the topic
being written about can’t advance to an academic audience a position
inconsistent with his or her client’s?
Wright: I don’t know the professional responsibility component.
I have a healthy skepticism for paid-for advocacy, but that’s a rebuttable
presumption. I’d be willing to concede
that the skepticism meter goes up a notch or two.
Haber: from outside the legal academy, the presumption is
that the field is about getting to the truth. This requires both careful
scholarship and persuasion of others where you divulge your sources of funding,
make data available publicly, share requests for data, and practice open
science. He is hearing that legal norms
are different. [Because he is hearing a weird subset of claims.] Suggests a host of institutional problems in
the legal academy for playing an effective role in evidence based policymaking—seems
like conflicts of interest should be divulged. Legal academy was founded on
advocacy. That’s not about getting to the truth; it’s about serving the client.
That puts it in a difficult position for doing social science, about getting to
the truth. How to draw some bright lines
about which enterprise people are engaged in.
Kieff: ITC docket generates economic studies. If we were asked to study these issues, we’d
enjoy it.
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