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IP law profs and footnotes: gambling in Casablanca?

By Lawrence B. Ebert, Esq.

IPBiz hasn't seen much fallout from Steve Perlman calling a certain IP professor "a fucking liar". The 271blog wrote:

At one point, it even sounds like he calls one of the authors that contributed to matters cited in the Congressional Report a "f***ing liar" (this is not crystal clear, but you can judge for yourself at about the 7:35 point of the video)
[See Video: Intel, Startups Debate Patent Reform Efforts]

The words sound crystal clear in the clip and the targeted offender is identified.

Perlman was upset about the way the IP professor was quoting certain people. Perhaps Perlman is not totally familiar with past games by IP professors.

From 4 CHI.-KENT J. INTELL. PROP. 108:

Criticism of Clarke paper by Lemley and Moore.

In February 2004, Lemley and Moore criticized the work of Clarke, and suggested that the 85% number of
the 2002 paper by Quillen and Webster was more reliable.11 Lemley and Moore stated that Clarke
erroneously assumed that every continuation resulted in a patent.12 The relevant text on page 338 of Clarke
states:

The USPTO models deduct from the overall number of original applications those that are also counted as
continuing applications, to avoid double counting of applications (as does Quillen and Webster). The
USTPO models, however, also deduct from the total number of patents the percentage of applications that
give rise to patents both from the original applications and from continuing applications (which Quillen and
Webster does not).

There is no mention of any assumption that "every" continuation resulted in a patent. There is a correction
for cases in which BOTH an original (i.e., parent) application AND continuing applications give rise to
patents. In 2002, Quillen and Webster made such a correction, although less complete than that made by
Clarke.

There is no basis for the specific criticism by Lemley and Moore of Clarke.13 In fact, it appears that
Clarke's approach is more accurate than that of Quillen and Webster, and, as such, the 74% number, rather
than the 85% number, should be deemed more reliable.

Footnote 13 stated:

I contacted both Professor Moore and the Boston University Law Review about the basis for the
criticism in footnote 22, but to date have not received a response. In the area of scientific research,
inquiries are not always answered, as Leon Jaroff has illustrated for the inquiries of Bruce Flamm about the
paper by Kwang Y. Cha, Daniel P. Wirth, and Rogerio Lobo, 46 J.Repro. Med. 781 (2001); see
http://www.time.com/time/columnist/jaroff/article/0,9565,660053,00.html.

In the year 2009, LBE still hasn't received a response. Mark Lemley did say something, which led to a later
paper by LBE. [4 CHI.-KENT J. INTELL. PROP. 186 ]

Full post as published by IPBiz on May 14, 2009 (boomark / email).