Sunday, November 08, 2009

The "wearing down" fallacy as to examiners and editors

Way back in 2004, Mark A. Lemley and Kimberly A. Moore in their "Ending Abuse..." paper [ 84 BULR 64 (2004) ] wrote at page 65:

the structure of the PTO suggests that continuations may well succeed in "wearing down" the examiner, so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither incentive nor will to hold out any longer.

The basic logic of this proposition was questioned in comments made to the USPTO on rulemaking, and in 2008 "just-n-examiner" laid the wood to the argument from an examiner's perspective.

Recent proposals for count changes acknowledge the falsity of the Lemley/Moore logic.

The "wearing down" argument was applied to journal editors in the Chiranjeevi matter.

Text quoted on IPBiz in
Plagiarized Proteomics Paper Pulled

Christian, who is professor emeritus of chemistry at the University of Washington, Seattle, says Chiranjeevi's tactic was to flood journals with manuscript submissions in the hopes of wearing down editors who would eventually publish some of his work.

One commenter at The Curious Wavefunction stated the obvious:

Seriously, this works???? Eventually wouldn't they just discard submissions from the guy without reading them? I guess I should give the editors credit for taking each submission seriously.

IPBiz notes that it is the editor who is control of the fate of the science paper, and it is the examiner who is control of the patent application.

Another commenter wrote:

Chiranjeevi deserves a Darwin award. The submitted paper for which he got caught and which was a complete Copy and a Find and replace job of Cr for As had some gems.
Such as ...Our previous work (10) ....

and Ref 10 was some Japanese guys!

IPBiz notes the odd flip example in a certain stem cell paper wherein the authors (A) were found to have plagiarized from certain people (B) who were actually writing about the work of A. Can you spell Nayernia?

Another comment:

The thing is that such fraudulent manipulation could be detected by doing literature searches which now have become pretty easy with Scifinder etc. Referees either don't have time to do them or they trust the author. But given the number of cases appearing these days which could have been detected as manipulated/flawed using literature searches, referees need to start doing them.

IPBiz notes that when you have "editors" of journals like the Stanford Law Review who are unaware that Gary Boone didn't invent the integrated circuit (and that Noyce/Kilby did), you don't have people who think they need Scifinder, or whatever.
If they don't have the time, they should not be editors. If they trust the author, then they are not doing their job. At least patent examiners can correctly point to the fact that they are allocated a certain small amount of time.

The wavefunction blog has the quote: If I haven't seen further than others it's because giants were standing on my shoulders- Hal Abelson.

***As one footnote, Lemley's law firm was representing Shepard Fairey at the time of Fairey's meltdown. From Ed Shanahan in IP Law & Business:

Calls to lead Fairey lawyers Anthony Falzone, executive director of Stanford University's Fair Use Project, and Joseph Gratz, of Durie Tangri Lemley Roberts & Kent, were not immediately returned.

Shanahan later noted that the attorneys for Fairey moved to withdraw on Thursday, 29 Oct 09:

Fairey's present legal team--led by Anthony Falzone, executive director of Stanford University's Fair Use Project--write in their motion that "it is no longer prudent or feasible for present counsel to represent plaintiffs in this matter, because these events present a potential for conflicts of interest between counsel and client. This is itself sufficient to justify substitution." The motion goes on to say that withdrawal "is also appropriate here because it 'can be accomplished without material adverse effect on the interests of the client.'" Finally, the lawyers write that "there are additional grounds that for reasons of professional obligation present counsel could explain in camera if the court felt it was necessary."

Conflicts of interest that became apparent only when Fairey's deception was revealed? Come on.

In article on 22 Oct 09 titled ‘HOPE’ artist lied , the Stanford Daily had reported:

Stanford Fair Use Project attorneys representing “HOPE” artist Shepard Fairey have said they will continue to provide legal counsel in his copyright case, despite Fairey’s recent admission that he lied in court about which photograph he used to create his iconic campaign portrait of Barack Obama.

TechDirt had written on 20 Oct 09:

But, if we're going to talk credibility, shouldn't the Associated Press be careful to actually fact check its own articles on a case involving itself? In announcing the news about the Fairey revelation, the AP claimed that Fairey's lawyers had withdrawn from the case. However, his lawyers say that's simply not true, though they may withdraw from the case.

It's not clear that Mike Masnick at TechDirt reported the motion to withdraw, or analyzed the reasons stated to support withdrawal.


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