Anticipate This!™ | Patent and Trademark Law Blog

Arbitrary and Capricious.

Posted in Science and Technology by Jake Ward on May 22, 2006

How many patent practitioners out there rely on Wikipedia articles for general background information on science and technology?  I admit to it.  In fact, I have found Wikipedia to be a very useful source of general information.   Some studies have claimed that the online encyclopedia is nearly as accurate in covering scientific topics as Encylopedia Britannica.  See http://msnbc.msn.com/id/10478207/   However, to what extent do the courts think such articles should actually be relied upon?

A colleague recently brought the case of Campbell v. Sec'y of Health and Human Servs. to my attention.  See  http://www.uscfc.uscourts.gov/Opinions/Allegra/06/ALLEGRA.Campbell.pdf.  Although not an IP case, I found the court's ruling with respect to Wikipedia use very interesting. 

In this case, Campbell sought review of a decision rejecting their vaccine injury claims under the Vaccine Act.  The USCFC found that the procedures employed by the Special Master in the original decision were fundamentally unfair and that the rulings were either inadequately explained or arbitrary and capricious.  In particular, the court found the reliance on Wikipedia "medical" articles to be an "extraordinary risk."   "A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article 'may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;" (ii) Wikipedia articles are "also subject to remarkable oversights and omissions;' (iii) 'Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;' (iv) 'another problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;' and (v) 'many articles commence their lives as partisan drafts" and may be 'caught up in a heavily unbalanced viewpoint.'"  The Wikipdia articles did not – at least on their face – "remotely meet [the] reliability requirement."

I think this case may serve as fair warning on the use of Wikipedia articles in any legal practice, including IP or patent practice.  In light of this case, and the strong language regarding reliability of Wikipedia, a practitioner should carefully consider corroborating Wikipedia information when it is used.

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