Monday, July 25, 2005

Quillen's 85% grant rate number still quoted

The 85% grant rate number in the paper by Quillen et al. in the Federal Circuit Bar Journal (as well as the earlier 97% number) are based on bad math (the model allows a grant rate in excess of 100%) and bad legal assumptions (claims of a divisional application are NOT repeated attempts to claim the same subject matter of the parent). Nevertheless, the 85% number keeps coming up.

#1. In Kimberly Moore's paper Worthless Patents at footnote 5 (page 2):

But see Cecil D. Quillen et al. 12 Fed. Cir. B. J. 35, 38 (2002) (suggesting that the PTO issues over 85% of all applications that are filed [sic]).

[Kimberly Moore was the editor of the Federal Circuit Bar Journal at the time Quillen's papers were published. Moore later asserted that a paper by Clarke which criticized the work of Quillen incorrectly assumed that all continuation applications issued as patents. Clarke did not make this assumption.]

#2. In article in Boston Herald, July 24, 2005
[ ]:

Harvard Business School Professor Josh Lerner testified to a House subcommittee on intellectual property that all parties have an incentive to ``invest in abusing the system,'' for inventors are ``induced to make marginal applications by the likelihood of success'' - 85 percent of 350,000 annual applications will be approved. Holders of the many marginal patents can then use them to force others to pay royalties they shouldn't have to, or even to stay out of the field.

The book by Jaffe and Lerner relies on Quillen's numbers. A paper in the Harvard Law Review in 2003 treated the 97% number as if it were the grant rate.


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