Patent Law

Worse than plagiarism

By Lawrence B. Ebert, Esq.

In two investigative news stories, Adam Marcus describes the case against anesthesiologist Scott S. Reuben. This prominent Massachusetts pain researcher is accused of faking data that served as the basis for a minimum of 21 published medical studies. At least plagiarists ?borrow? data that are ostensibly real and therefore might have some medical validity. Fabricated data benefit no one but the author who is looking to bolster his reputation by fattening his portfolio of published studies.

IPBiz had written:

As background on this, recall that, although IPBiz takes a strong stance against plagiarism (repeatedly ridiculing the Harvard Business Review [HBR] text "plagiarize with pride"), IPBiz has always said that publishing false things does more damage to society than publishing true things, without giving credit to the original author. Both are bad, but circulating falsities does more damage.

With this background, observe that the IAM blog post Is it time to end patent examinations? is pushing the envelope on both points.

The text therein -- studies suggest only 10% - and these 10% are scrutinised in depth, why is there a need to examine patents at all? Most examinations are irrelevant (the 90%) and the others are redundant. Just stamp all patents as valid -- pushes what Lemley argued in 2001.

The fact that the numerous criticisms to what Lemley said were ignored in the IAM post pushes the "false things" part.

The final comment by Joff to LBE:

You are completely missing the point. Bo made a suggestion. I reported it. I was not breaking any news and I did not claim to. At no stage did Bo claim to have unique insight or a groundbreaking new opinion. He merely expressed what I considered to be an interesting idea. Why Bo should cite anyone else who has ever mentioned not examining patent applications when engaged in a casual conversation with me is, as I said before, not immediately obvious.

Various elements should be noted:

"not breaking any news" {Recall Eli Kintisch's "news of the week" story wherein Eli really wasn't breaking any news]
"did not claim to" [unless one says it's news, it isn't?, ditto "unique insight," "groundbreaking new opinion"]
"Why Bo should cite anyone else"

This approach sets an interesting baseline presumption: unless one says it's new, it probably isn't. Of course, that's the opposite presumption from the world of patents, wherein applications are presumed novel until the examiner says they are not. Patent "reformers" do not apply the rules of patenting to themselves.

"Reformers" do repeat a lot of things. The Quillen/Webster approach was accepted by Lemley, until he wrote "The Patent Office is Not a Rubber-Stamp," dumping Quillen/Webster sub silentio.

Full post as published by IPBiz on March 18, 2009 (boomark / email).