Patent Law

Citation of law review articles. On a lark, I looked at the table of authorities for about two hundred party briefs filed in the past six months at the Federal Circuit.  These briefs each cited many cases and statutes.  Notably absent, however, were cites to law review articles. Out of the two hundred briefs, only two law review articles were cited — three if you count a citation to John Duffy’s Patently-O Patent L.J. article. The famous articles:

• Jeffrey S. Dillen, DNA Patentability - Anything But Obvious, 1997 Wis. L. Rev. 1023 (1997)
• John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21.
• Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 225(2005).

This result goes along with the rule of thumb for Federal Circuit appellate briefs — cite only Federal Circuit cases unless you have a compelling reason to do otherwise.