USPTO to Use Peer to Patent Program

An anonymous reader writes "DailyTech is reporting that the US Patent and Trademark Office is going to start using the Peer to Patent program. From the article:' The US Patent and Trademark Office has been getting praise for officially launching the Peer to Patent program -- the purpose of Peer to Patent is to find patents that have been issued for already made products or items that don't properly qualify for a patent. Because the USPTO usually does not have the manpower and time to thoroughly check every patent that comes into the office, many are unjustly rubber stamped.' The program will utilize a Wiki, among other tools, to get the job done."

Comments

Two words:

[Vorondil28]

'bout time.

Re:Two words:

[Red Alastor]

'bout time.

Indeed. Now they need to apply time penalties for stupid patents. Each time you troll them they wait longer before they examine your next patent and it grows exponentially.

No one would submit tons of patent applications at once and hope something (or everything pass).

And it doesn't disadvantage the small guy.

Re:Two words:

[mattkinabrewmindspri]

I think that's the point.

...the purpose of Peer to Patent is to find patents that have been issued for already made products or items that don't properly qualify for a patent.

Infant Stage

[eldavojohn]

I think that the Wiki is really in its infant stage as there's not much on it. A lot of times, don't they take a huge body of documents and then write an ingestor application to seed a serious Wiki?

The most interesting thing on the site is the research style paper entitled "Peer to Patent": Collective Intelligence and Intellectual Property Reform by Beth Simone Noveck. There's an insane amount of footnotes on the first opening pages and it is a PDF so I will repost the abstract:

The patent system is broken. The Constitution intended for patents to foster innovation and the promotion of progress in the useful arts. Instead, the Patent Office creates uncertainty and monopoly. Underpaid and overwhelmed examiners struggle under the burden of 350,000 applications per year and a mounting backlog of 600,000. Increasingly patents are approved for unmerited inventions. What if we could make it easier to ensure that only the most worthwhile inventions got twenty years of monopoly rights? What if we could offer a way to protect the inventor's investment while still safeguarding the marketplace of ideas from bad inventions? What if we could make informed decisions about scientifically complex problems before the fact, rather than trying to reform the system ex post? What if we could harness collective intelligence to replace bureaucracy?

This Article argues that we should reform the patent system by re-designing the institution of patent examination. Our existing legal mechanisms for awarding the patent monopoly are constructed around the outdated assumption that only expert bureaucrats can produce dispassionate decisions in the public interest. Building upon what we have learned from online and off-line systems of collaboration, we can now use the tools available to combine the wisdom of expert scientific communities of practice with the legal determinations of a trained Patent Office staff.

This Article proposes the creation of a peer review online system to help the Patent Examiner find the right prior art and access those experts who can advise on how to apply it. This new mechanism for collaborative expertise provides an avenue for reform that requires minimal statutory change while improving the quality of patents. We have arrived at a unique moment in history when four factors converge to make this reform possible: first, the state of patenting has become so problematic as to meet with almost universal opprobrium; second, patent applications are published after eighteen months independent of grant, making it possible to consider open peer review; third, we now have the technology to make peer review on this scale possible; and fourth, we have experience both with offline peer review and with online systems for collaborative decision making that provide the empirical understanding of how to re-construct our intellectual property institutions. This Article not only argues for such an institutional re-design, it provides a blueprint for the pilot that the United States Patent Office has agreed to implement. This proposal has implications beyond the patent process. It may enable us to contribute to the design of other social systems that depend upon the collaboration of experts across a distance, providing ways to improve policymaking, deepen democracy and rethink our fundamental assumptions about governance.

As you can see, it's a pretty far-reaching and very hopeful aim at fixing something that the vast majority of our community, Slashdot, view as a broken system.

So there you have it. Something is broken, here's the proposed solution now let's see if it works. The only possible show stopper I see here is that I'm not so sure it would benefit anyone to join this proposed community of "patent clerks." They are hoping for an army of people to read over patents and notice similarities or infringements for proposed patents. The Wiki's answer to my concer

Re:Infant Stage

[Rob T Firefly]

I think that the Wiki is really in its infant stage as there's not much on it. A lot of times, don't they take a huge body of documents and then write an ingestor application to seed a serious Wiki?

It officially opens on May 12. They still have a few days to load it up beforehand.

There doesn't seem to be much incentive for the reviewer though I said the same thing about Wikipedia and been proven wrong. In my opinion, patent law is one of the dirtiest of trades and I don't have much desire to become involved in it at all.

That's exactly why many people will want to help out with this. Slashdot alone has enough people disgusted enough with the patent system to clean things up substantially and help fix it. People can always complain about things, but it's when they're willing to do something about it that things get done.

Why don't they use Slashdot?

[Billosaur]

Competition will drive more information into the process. So long as people make valid arguments as rated by their peers, their personal agenda is irrelevant. Having many participants in the process dilutes the effect of any bad apples or unconstructive participants. Within any social reputation system, norms evolve to safeguard the quality of participation and we can expect something similar here.

Sounds like we already have that here on Slashdot; let us review patent applications. I am sure we can fair and unbiased, especially when it comes to software patents.

April Fools?

[Buzz_Litebeer]

I had to check the document date to make sure this wasnt a joke. How do we expect that the patent office will be able to take these peer patent reviews seriously? How will this stand up in a court of law?

Seems a bit shaky.

Re:April Fools?

[grasshoppa]

Doesn't matter where the data comes from, as long as it's verifiable, it's still valid data.

Slashdot falls silent...

[enjahova]

...as thousands of nerds choke on their breakfast upon realizing that the USPTO finally read their comments on Slashdot.

A step in the right direction.

[MartinG]

This will no doubt help matters, but still the burden of this work is being put on the wrong people. It should be on those who want the patent in the first place.

If an existing patent grant is subsequently overturned for reasons that the applicant could reasonably discovered themselves then they should be penalised. It should be expected that the applicant has searched exhaustively (or at least as much as can be reasonably expected) before applying in the first place. Why should anyone else have to bear that burden?

Re:A step in the right direction.

[RingDev]

"This will no doubt help matters, but still the burden of this work is being put on the wrong people. It should be on those who want the patent in the first place."

But then there is a problem with motivation and bias. Maker of XYZ patent is of course going to say his patent is different than or a vast improvement over patent YXZ, even if the two are virtually identical. The patent submitter has a monetary stake at getting their patent approved, so of course they will do sufficient "research" to "prove" that their patent is unique and appropriate.

Thus the need for independent reviewers. Which is what frightens me somewhat about opening the process to peers. If MS submits a patent request for a new form of technology, Apple, Sun, IBM and who ever else wants to can flood the review panel with peers with a bias. Preventing MS from acquiring a patent (even a valid one) can prove to be financially beneficial to MS's competitors.

I think this system will help the process, but there still needs to be significant over-site to ensure that people are not buying the ability to block competitors' patents.

-Rick

Re:Not as good as it seems....

[GigsVT]

who in the public is going to take the time to review 1,000 patent applications a week, search for prior art, and send the relevant art to the USPTO

Yeah, that's like expecting thousands of people to write a complete OS and all the applications for it. It'll never happen.

Why should this change anything at all?

[babbling]

What makes you think this will improve matters? Who exactly is going to go reading patents and reviewing them for the patent office?

Lawyers? No... they'd be much more interested in spending their time on similar work that they actually get paid for.
Developers/scientists/engineers? No... (AFAIK, IANAL) most legal advice suggests that you shouldn't go reading about patents in your field, and instead just read patents whenever they become relevant to you. (when you're being sued for infringement, for example)

I struggle to see how the patent office is going to get much out of this. I also struggle to see why people should contribute (without being paid) to such a broken system. Contributing in this way will not make the system any less broken. It will more likely just make it a bit easier to keep running it.

Re:Why should this change anything at all?

[chrispycreeme]

If I understand the concept I think slashdot readers would be one group that would help with this. How many times have people posted all the "prior art" examples for these lawsuit harvest patents on /.? Open source developers that have projects threatened by junk patents etc etc. I think this is a fantastic development.
my 2 cents, not one red cent more from me.

Re:Why should this change anything at all?

[mzwaterski]

Come on. Please read the article before complaining. The peer review process is merely to submit prior art. Everyone on slashdot now has the chance to submit all the prior art that they always talk about whenever a patent story is posted. The art will be reviewed by the examiner ultimately. The goal is to discover and have the examiner review the most relevant prior art. Microsoft can use its 100 user ids to submit prior art against itself...but they already have a duty to submit any art they know about...so your comment really doesn't apply.

Re:Why should this change anything at all?

[nead]

What makes you think this will improve matters?

Even if only 1 bad patent is prevented from passage and/or enforcement it will be an improvement.

Who exactly is going to go reading patents and reviewing them for the patent office?

Mike over at Tech Dirt of course.

Lawyers? No... they'd be much more interested in spending their time on similar work that they actually get paid for.

sure

Developers/scientists/engineers? No... (AFAIK, IANAL) most legal advice suggests that you shouldn't go reading about patents in your field, and instead just read patents whenever they become relevant to you. (when you're being sued for infringement, for example)

Most "consumerism" advice is never read anything, just bumble along in your daily life until you die. Some people read encyclopedia's for fun, some people read the law for fun, some people actually like to read patents. There certainly aren't millions of these people, but they are out there.

Contributing in this way will not make the system any less broken. It will more likely just make it a bit easier to keep running it.

Nobody said this was a silver bullet and you just pointed out a possible improvement in one matter as it were.

Re:Why should this change anything at all?

[just_another_sean]

As you say most people become concerned about patents when it affects them. But with all the litigation going on these days, especially in the tech industry, I think the number of people affected, and therefore possibly willing to contribute to this, is quite large. And it's not just company X getting sued that affects people. Sure company X is going to go all out to use this tool to their advantage and even contribute some knowledge back to it. Things really snowball though when a) affected end users become concerned, b) affected side markets become concerned (e.g. makers of Blackberry cases and accessories) and c) developers of software/services around a disputed technology become concerned. As a peer post pointed out the number of people on /. (and I would add Groklaw) alone who are willing to debunk bogus patents is a formidable force.

Although it's becoming cliché and tired at this point there is some truth to the "many eyeballs" line of reasoning. And debunking patent applications scratches the same type of itch in some people that hunting for security vulnerabilities and bugs does. Security researchers come in many forms so I won't generalize too much but a number of them do it for the sheer satisfaction of finding and reporting a vulnerability and the "cool factor" that comes with it. IMHO a lot of pro researchers and laymen alike would love a chance to participate in a system like this for patents.

Re:Why should this change anything at all?

['nother poster]

Well, I bet some of the Slashdot crowd can read legalese as well as the patent exameners, and really that doesn't matter. You read the patent. You think it means X, but it really means Y. You send information pertaining to prior art for X. Patent examener reviews your prior art, decides it isn't relevant to X, and is disqualified. Ta da. Basiclly this process is being tested so that examaners review prior art, not search for it.

I'm on the verge of tears

[Mateo_LeFou]

It is astonishing to me that USPTO might be getting a bit of a clue after decades of sucking. They deserve our applause and our help; remember, we're the ones who have been so pissed at them for screwing up the software industry. They look sincere, so bury the hatchet and edit that wiki!

Headline should include the word "Proposal"

[Anonymous Coward]

I'd yell at people to RTFA, but the article gets it wrong, too. The reality isn't "USPTO to Use Peer to Patent Program" but "Some random article from a law school proposes USPTO should Use Peer to Patent Program".

This is an interesting idea, but nothing more than that; an idea.

Re:"underpaid and overwhelmed"

[DerGeist]

This is so true. The USPTO often recruits near where I live and work. In college, they had a booth at the college career fair and were the only people with NO line whatsoever. They literally had to walk around and ask people to come talk to them. It was pretty sad.

It wasn't hard to figure out why, they were offering salaries nearly $15k lower than the competition. A CS/EE Master's degree and a 3.9-4.0 GPA would earn you something like $56k. In the DC area that's roughly $35k if you live somewhere with an average cost-of-living. Needless to say, most weren't too interested in the USPTO.

To make matters worse, the job is awful. You are given x number of patents a week, period. Whether or not you finish them you're still getting them piled on you. It's just one after the other, like sorting mail your whole life. They tried to make it sound exciting, but it just wasn't.

I spoke with some people who worked at the USPTO. They hated their lives. Their technical skills went completely to waste and they quickly learned you either become a patent lawyer or you flounder and die.

This grim picture is all the USPTO has to offer to incoming recruits, and no wonder they are understaffed. Lousy patents making it through the system makes sense when you're reduced to hiring the desperate and underqualified. That's why I'm excited about this program. It allows others to help make decisions and provide insight rather than placing the entire burden on an underpaid, understaffed government office. A much needed change.

Re:Headline should NOT include the word "Proposal"

[Nananine]

Actually, no. This is a pilot program. From the USPTO website:

The United States Patent and Trademark Office (USPTO) will hold a briefing on May 12, 2006, from 9:00 a.m. to noon in the agency's Madison building, 600 Dulany Street, Alexandria, VA. The USPTO has created a partnership with academia and the private sector to launch an online, peer review pilot project that seeks to ensure that patent examiners will have improved access to all available prior art during the patent examination process.

As a follow-up to the February 16th meeting, this briefing will focus on further developing previously discussed initiatives as well as answering the question of what constitutes valid prior art and a greater in-depth analysis of the peer review pilot project that is under consideration.

The meeting is open to the public. However, space is limited so please register early. Only the first 220 registrations can be accepted.

The article links to the registration page, so it's a bit confusing.