The Federal Circuit cites legal scholarship as frequently as other circuits, according to a study by David Schwartz and Lee Petherbridge (Patently-O has a nice summary). I have also heard that patent scholarship tends to be more widely read than other legal scholarship, both because many law review articles have practical value and because patent practitioners often work at a high academic level (I have no evidence to support this claim, but it seems plausible). Of course, most citations to patent scholarship come from other scholarship and secondary sources. So what are the most cited patent law articles?
I searched the JLR database on WestlawNext for "patent" and sorted by "Most Cited." This is certainly under-inclusive, especially because many older articles aren't on WestlawNext, so I limited this list to articles from the past 15 years (the oldest on this list is 1999, and the next oldest would have been 1994). I also cut articles that were about intellectual property in general, rather than patents in particular. I separately list the total number of citations and the number of non-academic citations (from cases, administrative decisions, briefs, pleadings, and expert materials—everything other than "secondary sources" on WestlawNext). This list also happens to be all the articles that meet the above criteria and have over 100 citations, at least as recorded on WestlawNext. With those caveats, as well as those of Fred Shapiro in his more rigorous studies of the most-cited law review articles, here they are!
- Dan Burk & Mark Lemley, Policy Levers in Patent Law (Va. L. Rev. 2003, 306 cites, 22 non-academic): Courts should use built-in policy levers to adjust the patent laws for specific technologies. (Their related article, Is Patent Law Technology-Specific?, would have been #6 but is listed along with this one because of its close relation.)
- Robert Merges, As Many As Six Impossible Patents Before Breakfast: Property Rights for Business Concepts and Patent System Reform (Berkeley Tech. L.J. 1999, 245 cites, 15 non-academic): The increased volume of applications due to business method patents has pushed the patent system into crisis, so we should reform the PTO and adopt a patent opposition system.
- Kimberly Moore, Judges, Juries, and Patent Cases—An Empirical Peek Inside the Black Box (Mich. L. Rev. 2000, 212 cites, 35 non-academic): Although judge and jury patent trials have similar appellate affirmance rates, data suggets that jury verdicts may be biased or inaccurate, and the Federal Circuit has little power to correct these verdicts.
- Julie Cohen & Mark Lemley, Patent Scope and Innovation in the Software Industry (Cal. L. Rev. 2001, 197 cites, 25 non-academic): There should be a limited right to reverse engineer patented software, and courts should apply the doctrine of equivalents narrowly in software patent infringement cases.
- Maureen O'Rourke, Toward a Doctrine of Fair Use in Patent Law (Colum. L. Rev. 2000, 176 cites, 2 non-academic): Patent law, like copyright, should have a fair use defense.
- F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions (Minn. L. Rev. 2001, 144 cites, 5 non-academic): Patents should be treated as property rights (and not protected by liability rules) to facilitate commercialization of inventions. (This commercialization theory is related to Edmund Kitch's prospect theory, which would surely be on this list if it were on WestlawNext.)
- Arti Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent-System Reform (Colum. L. Rev. 2003, 130 cites, 4 non-academic): Congress should give the PTO significant (but not plenary) fact-finding responsibility (most importantly, through opposition proceedings), and should create specialized district courts to handle all patent cases (while limiting the role of the jury). Patent policymaking responsibility is better placed with the Federal Circuit than with the PTO, but the court should have generalist input through amicus briefs and increased Supreme Court review.
- John R. Thomas, The Patenting of the Liberal Professions (B.C. L. Rev. 1999, 135 cites, 15 non-academic): State Street was wrong, and we should limit patentable subject matter to a standard of industrial application.
- Kimberly Moore, Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation? (N.C. L. Rev. 2001, 117 cites, 14 non-academic): Even after the creation of the Federal Circuit, empirical results show that patent litigants continue to forum shop, a problem that could be limited using specialized trial courts or statutory venue limits.
- Ian Ayres & Paul Klemperer, Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits of Uncertainty and Non-Injunctive Remedies (Mich. L. Rev. 1999, 105 cites, 3 non-academic): The deadweight loss of the last bit of monopoly pricing outweighs the benefit to patentees, so it would be more efficient to increase patent duration while allowing limited infringement (as delay and uncertainty in patent litigation allows).
Do any readers know an easy way to figure out the most-cited law review articles of all time? Or the articles that have the most non-academic citations?
How about the most-cited law review articles by law students? I guess most law journals still call them "Notes" rather than articles, but it would be interesting to see whether any have gotten the same kind of interest as those written by faculty.ReplyDelete
Great idea, David! I'll see if I can figure out a way to make that list in a future post.ReplyDelete