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Internet Publishing: Online Today, But What About Tomorrow Or Where Have You Gone, 406,302?

In the January 2006 issue of Intellectual Property Today, attorneys Thomas J. Van Gilder and Carl A. Kukkonen cited a document on the US Patent and Trademark Office web page. [USPTO] for the proposition that “patent filings increased from 353,394 to 406,302, an increase of nearly 15%, from fiscal year 2002 to fiscal year 2005”. In footnote 3 of their article, they carefully provided the page number of the document and the link to the document: See USPTO 2005 Annual Report at 61, http://www.uspto.gov/web/offices/com/annual/2005/2005annualreport.pdf.

The interesting, and troubling, aspect of this is that the document cited at the given link will not have the number “406,302”.

The number 406,302 did not come out of nowhere. Intellectual Property Today mentioned this figure in its December 2005 issue: The agency received 406,302 patent applications and

323,501 trademark applications as reported in its FY05 Performance and Accountability Report released in November.
eWeek magazine mentioned the figure on January 16, 2006: Last year, the USPTO granted 165,485 patents, up from 99,000 in 1990. According to the patent office, a record 406,302 new applications were filed.

only last year.
On January 25, 2006, Bruce V. Bigelow of the San Diego Union-Tribune used it: In November, the patent office said it issued 165,485 patents in the fiscal year ending September and received 406,302 patent applications, as well as 323,501 trademark applications. Andy Holloway of Canadian Business used the number on January 30, 2006: It’s easy to see why the patent office is overwhelmed. He received 406,302 patent applications

and granted 165,485 of them last year, adding to a patent database that numbers around seven million.
On February 20, 2006, Dan O’Shea had used the number in Telephony: In 2005, the agency received 406,302 patent applications and 323,501 trademark applications, according to the agency’s website.

As of April 23, 2006, a table can be found on page 61 of the link identified above indicating that there were 409,532 filings in fiscal year 2005. There is no explanation of why the number previous of 406302 disappeared. Data that only exists on a website can be changed, without explanation, and thus cease to exist. In this particular case, we have evidence of the previous information, because so many people have cited it. However, someone looking only at footnote 3 of Van Gilder and Kukkonen’s article, and following the link to page 61 might be led to the conclusion that Van Gilder and Kukkonen “got it wrong”.

In fact, Van Gilder and Kukkonen’s “error” allegedly referred to a link to a site capable of changing numbers. Authors who cite Internet sites to obtain numerical data should be aware that such a citation can be perilous in the sense that it is not permanent. The situation presents an interesting problem in the way citation checking works. If a law review author used the number 406,302 and cited Van Gilder and Kukkonen, the citation would be approved. However, if a law journal author used the 406,302 number and cited the USPTO document, the citation should NOT be approved.

In this particular case, there is a secondary substantive issue relating to patent law. The figure of 409,532 (or the previous figure of 406,302) includes the combination of utility patent applications AND design patent applications. Typically, in things like the patent grant rate debate, you only look at utility claims. Taking the previous data as presented, one would find an attribution rate of 165,485/406,302 = 40.7%, tiny compared to the 97% number once alleged by Quillen and Webster, or the number of 85% accepted by Lemley and Moore in the article “Ending the Abuse of Patent Lawsuits.”

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