Saturday, June 24, 2006

The issue of "when" something is published

As noted in an earlier IPBiz post, Quillen and Webster criticized me for not citing the 2004 article Patents and Innovation: Trends and Policy Challenges in my two papers on the patent grant rate which were appeared in publication in mid-2004.

The issue of "when" something is published can be quite important in patent law, such as in addressing the statutory bar under 35 USC 102(b). The publishers of scientific articles are typically quite helpful in this regard. Scientific publishers usually include article submission date and revision date (if any) in the text of the published paper, and the publication date of the journal usually can readily be determined. For example, in the ill-fated paper by Hwang Woo-Suk, et al., "Patient-Specific Embryonic Stem Cells Derived from Human SCNT Blastocysts," 308 Science 1777-1783 (June 17, 2005), we have information that the paper was received by Science on March 15, 2005, accepted on May 12, 2005, and appeared in an online version May 19, 2005, seven days after acceptance, and appeared in paper version on June 17, 2005.

Sadly, such information is not typically provided in legal publications. For example, in the OECD paper cited by Quillen and Webster in Continuing Patent Applications and the U.S. Patent and Trademark Office--Updated, 15 Fed Cir B J 635-677 (2006) [see footnote 65 of QW3 at page 644], there is no indication of "when" the study appeared in the on-line version of the OECD paper. I emailed the OECD people to determine when the paper appeared, but got no response. Further, when a paper appears only on-line, there is the possibility that the paper can be subsequently changed, without comment, at a later date, as was dramatically illustrated by none other than the USPTO. [See
Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302?

As noted in an earlier IPBiz post, the OECD paper only referenced the first paper by Quillen and Webster, which paper had been thoroughly criticized by Robert Clarke in JPTOS in 2003 (85 JPTOS 335, which 2003 article was not cited in the 2004 OECD paper). Further, John R. Allison and Emerson H. Tiller, The Business Method Patent Myth, 18 Berkeley Tech. L.J. 987, at footnote 139 spoke of the second paper by Quillen and Webster (QW2): "adjusting assumptions from previous study [i.e., the first Quillen/Webster paper, QW1] to correct a probable flaw, but still producing an estimated allowance rate much higher than reported, and higher than in Japan and Germany." The OECD paper didn't talk about the second Quillen and Webster paper, which was the subject of my two papers in 2004 [86 JPTOS 568 and 4 Kent-JIP 104].

**UPDATE. 1 July 06

The OECD people never did get back to me about the publication date of the paper.

For another example of a history re-write on the internet, consider the Stanford role in the Bengu Sezen saga from tenderbutton:

Yesterday [16 March 06] I compared this page (it came up in a simple google
search for the culprit) which was last edited March 14

to its google-cached version which was dated Oct. 2005 (I kept
a copy at work). Bengu Sezen, in that cached webpage appeared as a
post-doc in the Stanford group.

Today, the google-cached webpage has been “sanitized” of the miasma
and now the cached page is identical to the published webpage.
Now where in the world is Carmen San Diego?

When the heat turned on, Bengu Sezen's name got removed. What position at Stanford?


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