Sunday, March 29, 2009

If we don't cite it, it doesn't exist?

Footnote 14 of Lemley and Sampat's Emory "Rubber Stamp" states:

For a nice analysis of the problem, see Bruce A. Kaser, Patent Application Recycling: How Continuations Impact Patent Quality & What the USPTO Is Doing About It, 88 J. Pat. & Trademark Off. Soc'y 426 (2006).

What Lemley and Sampat neglected to mention in the Emory Rubber Stamp was 88 J. Pat. & Trademark Off. Soc'y 726, which criticized Kaser's paper. Separately, as noted previously on IPBiz, the 2008 Emory "Rubber Stamp" didn't cite Quillen/Webster's THIRD paper (published in 2006) or commentary thereon, published in JPTOS in 2006.

Not exactly glowing scholarship by Lemley, Sampat, or the "reviewers" at the Emory Law Review.

See also

One wonders if the phrase "For a nice analysis of the problem " is law professor talk meaning "For an analysis of the problem agreeing with mine." If neither law professors nor law reviews are willing to present pre-existing information from all points of view on a problem, they really become nothing more than infomercials, shilling a product. Also, a patent applicant who did not present adverse information to his application would be found guilty of inequitable conduct. Why not apply the same standard to law professors, at least IP law professors?


PatentHawk posted the following:

"Innovation without protection is philanthropy." - Mark Blaxill and Ralph Eckardt in The Invisible Edge. What a great book. Calling it "well written" is an understatement. Story after story that make the point, as well as entertaining to boot. Anyone with an interest in the business of patents, or the importance of patents, must possess this book. Crucial reading.

and got a first comment to the post:

This book supports Hawks preconceived notions about patents therefor it is the best thang evar.

IPBiz asks what's the difference between this and Lemley's "for a nice analysis of the problem"? Actually, the difference is one expects some objective analysis in a law review article, and one expects individual viewpoints in a blog. One can be an advocate in a law review article, but one shouldn't be ignoring the published literature. As to discussing published literature in a blog, see Joff Wild and IAM.


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