The chameleon-like nature of positions of IP professors
The Quillen-Webster study suggests, moreover, that they [examiners at the USPTO] ultimately issue an astonishing ninety-seven percent of the unique applications filed. [p. 1528]
In footnote 67 of Rethinking Patent Law's Presumption of Validity (60 Stan. L. Rev. 45 (2007)), Lemley changed his story:
See Mark A. Lemley & Bhaven Sampat, Is the Patent Office a Rubber Stamp? (2007) (unpublished manuscript, on file with authors) (reporting a PTO grant rate around 75% and that the PTO only actually rejects 15-20% of applications).
[On a less disguised Lemley flip-flop, recall Lemley switches sides in KSR v. Teleflex . Further, one has to recall the infamous footnote 22 of ENDING ABUSE OF PATENT CONTINUATIONS, 84 B.U.L. Rev. 63 (2004), in which Lemley categorically rejected (on a false basis, no less] the 75% number -->
Cecil D. Quillen, Jr. et al., Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office - Extended, 12 Fed. Cir. B.J. 35, 38 (2002). Quillen and Webster had originally estimated in earlier work that the grant rate was 95%. Cecil D. Quillen, Jr. & Ogden H. Webster, Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office, 11 Fed. Cir. B.J. 1 (2001). This earlier work was properly criticized for failing to take account of cases in which multiple patents issue from a family of continuation applications. On the other hand, some of the critics made equally unrealistic assumptions - for example, that every continuation filed results in a separate patent. See Robert A. Clarke, U.S. Continuity Law and Its Impact on the Comparative Patenting Rates of the U.S., Japan and the European Patent Office, 85 J. Pat. & Trademark Off. Soc'y 335, 338 (2003) (erroneously assuming that every continuation resulted in a patent and concluding that the grant rate was 75%). The 85% number provided in the revised Quillen et al. study is based on actual data about the applications that issue based on continuations, and reflects the best estimate we have of how often applications mature into patents. ]
Going to theme of others on patent grant rate -->
In the year 2007, Jordan Barry (2007 Wis. L. Rev. 585) , also turned the Quillen/Webster story "inside out," although citing only to the FIRST Quillen/Webster paper:
Cecil D. Quillen, Jr. & Ogden H. Webster, Continuing Patent Applications and Performance of the U.S. Patent Office, 11 Fed. Cir. B.J. 1, 3 (2001) (estimating that the percentage of patents that are ultimately rejected may be as high as 20 percent). [footnote 12]
In the year 2007, Steven P. Smith and Kurt R. Van Thomme, 17 Alb. L.J. Sci. & Tech. 127, were citing 2001 work by Quillen:
See Cecil D. Quillen, Jr., The U.S. Patent System: Is it Broke? And Who Can Fix it if it Is? 18-19 (May 11, 2001) Address at the Spring Meeting of the Association of General Counsel, available at http://www.ftc.gov/os/comments/intelpropertycomments/quillenattachments/isitbrokewhocanfixit.pdf.
Also, in the year 2007, Professor John R. Thomas, 17 Fordham Intell. Prop. Media & Ent. L.J. 875, wrote:
As you know, right now the U.S. Patent Office claims a roughly seventy percent grant rate.
Thomas cited Cecil D. Quillen, Jr. & Ogden H. Webster, Continuing Patent Applications and the U.S. Patent and Trademark Office - Updated, 15 Fed. Cir. B.J. 635 (2006), who did NOT show the U.S. Patent Office claims a roughly seventy percent grant rate.
In 85 Tex. L. Rev. 1991 (2007) [Frontiers of Intellectual Property: Patent Holdup and Royalty Stacking], the research for which was funded by Apple Computer, Cisco Systems, Intel, Micron Technology, Microsoft, and SAP, Lemley described the "rubber stamp" manuscript in the following way:
Mark A. Lemley & Bhaven Sampat, Is the Patent Office a Rubber Stamp? (2007) (unpublished manuscript, on file with author) (finding that modern patent applications are filed disproportionately in the information technology industries).
The "rational ignorance" paper was described:
Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1501 (2001) (noting that the vast majority of patent disputes settle or are abandoned prior to trial).
Lemley is a patent advisor to Barack Obama.
As a minor footnote, of text in footnote 26 of Bad Science in Search of "Bad" Patents, 17 Fed. Cir. B.J. 1:
But see Quillen et al., Extended, supra note 24 (including their rebuttal, update and most recent account of the USPTO grant rate estimate controversy
the reader should note that 88 JPTOS 1068 (2006) is a response to the third paper by
Quillen and Webster [15 FED. CIR. B.J. 635, 635-36 (2006)] and which is a more recent account of the grant rate estimate controversy.