Thursday, July 12, 2007

The 97% grant rate that never was

Another blog in a post "Lies, Damn Lies, and Statistics" mentions the 97% patent grant rate number of Quillen and Webster's first paper on grant rates which appeared in the Federal Circuit Bar Journal (11 Fed. Cir. B. J. 1). Although the other blog suggests this number was quoted extensively by Lemley and Moore in the "Ending Abuse..." paper in BULR, Lemley and Moore had recognized in the BULR paper that the 97% number was a no go, and reverted to the numbers of Quillen and Webster's SECCOND paper on grant rates which (also) appeared in the Federal Circuit Bar Journal.

Although Lemley and Moore did not go with the 97% number, they nevertheless wrongly attacked Robert Clarke of the USPTO as assuming that every continuation application led to a patent. Clarke, in his paper in JPTOS criticizing the FIRST Quillen/Webster paper, never made the assumption asserted by Lemley and Moore. Robert Clarke is the person erroneously referred to as George Clarke in Jaffe and Lerner's Innovation and Its Discontents.

The other blog cites Patrick Doody's "The Patent System is Not Broken" for debunking the 97% number, although Doody's paper is mainly about patent academics repeating the (mis)analysis of Jaffe and Lerner's Innovation and Its Discontents (and consequences thereof). The 97% number is not mentioned in Doody's paper, although footnote 52 alludes to the patent grant issue and one "G.A. Clarke."

Although the 97% number did get a lot of traction, footnote 17 of Quillen and Webster's FIRST paper shows that Quillen and Webster knew, at the time of the first paper, that the number was NOT accurate. Anyone who actually read the FIRST paper (as distinct from sound byte seekers) would have understood this from the beginning.


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