A Federal Information Quality Act Challenge to the White House 'Patent Troll' Report

Abstract

Government-disseminated information is unlike that of private parties or non-government entities’ information on the internet or in academic journals, with varying degrees of accuracy and reliability. Because the public disproportionately relies on information disseminated by the government, the government holds itself to substantially higher quality standards. Congress enacted the Information Quality Act (“IQA”) in order to ensure that information disseminated by government agencies meet the standards of “quality, objectivity, utility, and integrity.” 44 U.S.C. § 3516, note. Information disseminated by the government upon which the government and the public rely must be “presented in an accurate, clear, complete, and unbiased manner.” The IQA forbids agencies from endorsing or approvingly disseminating information of substandard quality from third-parties. This is a copy of the author’s submission under the IQA to the White House, requesting corrections of the “patent troll” (Patent Assertion Entity or “PAE”) Report issued in 2013. The PAE Report is a government dissemination of economic assessments, survey results, and other information that is subject to the IQA’s statutory requirements. However, an in-depth analyses of its content shows that it fails the IQA requirements. The Petition shows that the PAE Report is non-compliant because it expressly relies on third-party information that does not meet the requirements of the IQA. This information includes studies that were subject to no peer review; that have relied on opaque or erroneous methods and surveys; that lack objectivity; and lack practical utility. These sources relied upon by the PAE Report purport to document patent litigation rates, quantify the private and social costs of patent litigation, survey “victims” of PAE litigation, and show the purported adverse effects of PAE activities. The Reports generally fail the objectivity requirement of the IQA, both on presentation and substance, because they focus only on the purported negative aspects of NPEs or PAEs. The IQA “objectivity” standard also requires analysis of the salutary economic benefits of patent enforcement or the role of NPE’s as intermediaries — analysis that is entirely omitted. The Petition concludes with 21 specific requests for correction supported by evidence and arguments. It provides a compendium of detailed analyses of fundamental flaws surrounding data and methods used in eight commonly cited studies purported to document PAE harms, upon which the PAE Report relies.