What Experience Is Necessary To Write Good Patent Scholarship?

Between taking the patent-law-less bar exam and moving, I haven't had much time for reading scholarship in the past few weeks, so I am looking forward to two full days of IP scholarship at IPSC this week. But Friday's guest post at Patently-O reminded me of a trend I've noticed at the intersection of the academic and practicing patent law communities: practitioners criticizing academics simply for being "academic." Are these merely ad hominem attacks, or is practice experience and/or a technical background really necessary to write good patent scholarship?

First, examples of these critiques: In Friday's Patently-O post, Professors Robert Merges, Pam Samuelson, and Ted Sichelman defend their Berkeley Patent Study from the criticism that it "is typical of other flawed 'scholarship' on patents by academics." When Professor Arti Rai wrote a guest editorial on Patently-O, commenters said "[t]his is not a business for amateurs, and surely not a business for dilettante academics," and noted that Rai was "not a registered patent agent or attorney. Never worked in the private sector. Academic through-and-through. No wonder she's full of it." (Actually, Rai did work in the private sector, but that's not my point.) Professor Doug Lichtman's op-ed on Microsoft v. i4i led Kevin Noonan to criticize him for his lack of practice experience:

This is something Prof. Lichtman might appreciate if he had any experience with the patent system outside opining on it from academe. According to his biography, he graduated from Yale Law School in 1997, spent 10 years at the University of Chicago Law School, and since 2007 has been at UCLA. No matter how intelligent Prof. Lichtman may be, there are some things that require actual experience to understand, and on that score the Professor is woefully lacking.

Many commenters agreed, with statements like this: "I grow weary of rank amateurs like Professor Lichtman opining thoughts they have neither the expertise, nor the experience to make about our patent system." Even on Written Description, a commenter suggested that Professor Mark Lemley is an "academic hack[]" who "may have made this mistake because he does not have the technical background necessary to understand the issues surrounding the invention of the light bulb."

So do any of these criticisms make sense? I think the answer is no: an argument is right or wrong on its merits, irrespective of the speaker's background. Credentials can be a useful shortcut (e.g., it would be a waste of time for physicists to debate the merits of every crackpot email they receive), but patent law professors are hardly crackpots—to my knowledge, most of them have some practical experience with the patent system, even if they don't have technical backgrounds or aren't registered patent agents. And I'm quite sure that my physics Ph.D. doesn't make me better able to research the history of the invention of the light bulb than Professor Lemley.

This is not to say that prior experience isn't helpful. People from all kinds of backgrounds have useful and unique perspectives on the patent system, and I would love to read patent scholarship from scientific researchers (both basic and applied), entrepreneurs, venture capitalists, patent agents, patent litigators, judges, economists, historians, etc. But viewing a system from the outside with a fresh perspective can also be valuable—anthropologists and historians rarely come from the cultures they study—and I see no reason why a diligent academic cannot research and write about the PTO, even without experience inside it. And if that academic gets things wrong, the most intellectually honest critique is "Prof. X says A, but A is not true because of B," not "Prof. X says A, but Prof. X obviously doesn't know what she's talking about."

So I hope that when a practitioner reads and disagrees with one of my papers, she responds by telling me why (or even better, how to improve the argument!), rather than merely criticizing my inexperience.