Bad cite check in U Penn Law Review

In a previous post on IPBiz we discussed a bad citation in the law review article Patent Portfolios, 154 U Penn L R 1 (Nov. 2005). The same error appeared in eBay's brief to the Supreme Court in eBay v. MercExchange.

Someone commented as to another error made by Wagner, which comment is appended to the previous post.

Of eBay's brief, the following email went out on Jan. 30, 2006:

I read with interest your citation on page 40 of the eBay brief to the 2001 paper by Quillen and Webster [11 Fed. Cir. B J 1] with the remark --(estimating the rate of patent approvals by the PTO to be 97%).--

First, I don't think Quillen and Webster estimated the rate of patent approvals to be 97%. In the text of their article, they placed an upper bound on the patent grant rate at 97%. However, in footnote 17 in the same article, they acknowledged they had made assumptions which were untrue, and the numbers in the 2001 would not be correct in view of the incorrect assumptions. A deeper discussion of this point appears in Endnote 5 of "Things are not always what they seem to be," Intellectual Property Today (October 2005), available LEXIS.

Second, a paper published by Quillen, Webster, and Eichmann in the next year (2002) in the same journal revised the grant rate number to be 85%.

Third, even that 85% number has been challenged, because the underlying methodology is flawed, both from a legal and numerical standpoint. [See Endnote 6 of the October 2005 article, citing to 3 law review articles challenging the validity of the 2002 Quillen/Webster/Eichmann paper.]

You might want to contemplate correcting your statement on page 40. In my opinion, it is not a correct statement of the Quillen/Webster position in 2001 and it is certainly not substantively correct in 2006.