Patent Reviews Via Wiki

unboring writes "Fortune reports on a pilot program where the patent approval process would be opened to outsiders for review. Reviewers can vote and discuss on different proposals, through say a wiki. Given the many (recent and past) patent approval fiascos, this seems like a good idea. It'll be interesting to see how they would deal with the issues faced by Wikipedia."

Comments

This will produce some *very* unhappy campers.

[70Bang]

Specifically, those who would ordinarily slip through the cracks because someone doesn't catch prior art.

A significant population with an [almost] unmeasurable body of knowledge and information would do a pretty thorough job of flagging someone which the patent examiners working under extremely high pressure to push things down the assembly line. This would make the examiner's job one of validation of claims posted via wiki.

One question remains: What's going to happen if we see a couple of companies who shall remain nameless and are granted patents by filling out a pre-approved form are faced with prior art (or silly art) claims and the company receives the approval anyway? That might prove there's some monkey business is afoot. (Donating a Playboy Bunny to their favorite charity? (Charity begins at home)

Obvious problem

[moquist]

The content of a patent application isn't protected until the patent is approved. Submitting your patent application to a public site lets all your competition know details of what you're doing with absolutely no guarantee that you'll get patent protection of your idea(s).

I must be missing something, because this seems so obvious and insurmountable.

Re:Obvious problem

[Flyboy Connor]

Maybe his statements are not correct from a legal point of view, but they do illustrate a practical issue which will surely rear its head with a patent-wiki.

Usually, a company applies for patents on all kinds of novelties for their new products. Often these novelties are not really patent-worthy: they are based on a novelty in an obscure older product (prior art), or they are quite obvious to anyone with the right skills. Still, the company applies for the patents because they might get some of them granted (since the USPTO cannot do a good job), which gives them leverage in court should the need arise.

And what if they do not get a patent? Well, no problems there, they will probably still be the first who brings a certain novelty to the market because the competition does not know what they are working on. Unfortunately, that will change with a patent-wiki: the competition will have a pretty good idea what will be in the new product, and will make sure that they do the same thing - especially if they feel the novelty is not patent-worthy, which they will vehemently argue on the wiki.

So the patent-wiki will probably stem the flood of patent applications for practical reasons.

Which, I suppose, is a good thing.

Bad idea

[Turn-X Alphonse]

Wikis are great at things which involve facts where no one gains anything from lies (See Guildwiki for example).

Wikis are bad when millions of dollars are involved and anyone can edit them. It only takes some "unknown person" who "doesn't have anything to do with the company" to goto the wiki and repeatedly edit it so it seems the patent is invalid or worthless and it may just seem that way (yes I know theres checks). Look at viral marketing and Sony's "lets graffiti shit to look cool" idea, notice how companies don't care how much money they spend just so they can look cool? Well what if they could pay some kid a couple of bucks a week to edit a wiki which could influence major things down the line... Yep you guessed it, they'll eat it up.

People need to register "Use the right tool for the right job" rather than "Wow it's open source! I bet I can use this system to fix everything in the world! Cancer/World hunger/Wars I've got your number bitch!"

Re:If you build it, they will abuse it.

[ian_mackereth]

One of the best features of a wiki is that all the edits are visible. If there's consistent corruption of particular information damaging to a claim, then that's the information to look at!

I suspect that there will be more need for accountability than there is with, say, wikipedia, but just having the facts unearthed by an army of interested persons will be valuable.

The mere fact of having some prior art or other pertinent information on the wiki won't be 'make or break', but an idea of what factors need independent verification should add enormous value to the Patent Office's research.

Some real flaws

[aiken_d]

I hate patent abuse as much as the next guy, but this seems like it's just begging for abuse.

How's this for a (new) patent abuse business model:
- Watch patent review wiki for interesting stuff
- Steal good ideas that other people have
- Instantly work on creating pre-dated "prior art" on websites, blog postings, etc
- Use shill accounts to point out the "prior art"
- Make some good cash off of other peoples' R&D

Or how's this for a "fuck with a much-hated company" mob mentality:
- Watch for patent applications from the hated company
- Instanlty work on creating pre-dated "prior art" on websits, blog postings, etc
- Post to slashdot, digg, etc, linking to the manufactured "prior art"
- Watch while thousands of tech zealots slam the patent on the wiki, citing your dishonest "prior art"

There are plenty more ways to abuse this, of course, those two just came to mind quickly and are kind of amusing.

The patent system is broken, that's for sure. But this isn't the answer. Or at least, if this is the answer, we might as well do away with patents altogether, since they will be very, very easy to dishonestly undermine. I know I'll get jumped on here, so let me ask that if you favor simply removing patents (or software patents, or whatever) from the law, please just say that and don't defend this terrible idea because it gets the outcome that you want while still pretending to support the idea of patents.

-b

Re:Some real flaws

[Duncan3]

That's why they are also moving to a first-to-file model. Prior art no longer matters, all that matters is who pays the $50k++++ it takes to do a patent these days.

That fee will likely increase greatly, since with any sort of real reviewing, almost no patent would ever make it. Less patents, higher fees each.

Frankly, patents don't matter for a hill of beans anymore. China doesnt honor them, and noone else is good enough about allowing slave and prison labor to make their costs low enough. Every movie, product, idea is out and copied in China before it's even available here. What did you think the whole "software as service" thing was all about - copy protection.

Anyway, noone here will ever afford one, so no worries. Whatever it is is already at Walmart for $2 :)

How many free eyes are they expecting?

[darkonc]

THe nice thing about the wiki (probably, in their eyes) is that they're probably expecting it to grow exponentially like the original wiki did.

In this case, however, they seem to be expecting tghousands of 'volunteers' to go hunting through an exponentially expanding list of stupid applications and doing the reviewer's jobs for free. I expect that this is really only going to happen to the most agregious of the 'bad' patents.

Other than that, you might be able to hope that some of the big companies will start assigning people to look at these things on an ongoing basis in the hops of slamming just about anything that moves before it get legs. Of course, if they start making agreements as to what they'll 'miss', then we'll have the worst of both worlds -- with the big companies setting up truces against each others' "volunteer" examiners, while the little guys get lambasted.

Yep. Lots of room for abuse.

Re:Why a wiki?

[NetSettler]

Wikis are better at presenting a single summary of discussions. In a forum, minor mistakes don't get fixed easily

I took the original poster's (excellent) suggestion not to mean "literally use a forum" but rather, more generally, why not keep track of who said what? There's nothing to say you can't design a forum in which there are discussion threads and other mechanisms, such as accounts you can log into and vote. It's not rocket science to give the person a menu that says:

• Post a comment to the discussion forum.
• Register (or re-register) your present opinion about this in a multiple choice form that can be aggregated mechanically with others' votes.
• Attach a free-form summary of your personal opinion on this item in 300 words or less (with optional URL pointer to a continuation page in another venue of your choice).

I don't think everyone editing each others' text is the way to go on this since it creates an artificial sense of tension--there's no reason that my having a different view than you means we have to fight over who's view gets recorded. But allowing each person the choice of several ways to present their throughts (interactively or not, multiple choice or not, size-constrained or not) seems good because you can get summarizable info when people choose to offer it.

Also, allowing anyone to update at any time means you can keep by-day summaries of how people's opinions change and to review the history of what the discussion and opinion summaries looked like on a given day.

Participants get sued - for knowing patent use

[Anonymous Coward]

An important fact about patents is that the damages for knowingly using a patent are much larger than those for doing it un-knowingly. It's going to be very interesting when people who review the patents in the wiki get sued and have difficulty denying their knowledge. Or, more interestingly, when the patent trolls start demanding IP addresses behind user names to help in their lawsuit campaigns.

I'm really not sure it will be wise to contribute to this if you have anything to do with software production or ever plan to have anything to do with software production.

Re:If you build it, they will abuse it.

[strider44]

When someone's looking to revue a patent they're not looking for positive things in why the patent is good, they're looking for reasons why it shouldn't be given. So if you let people only give reasons why the patent shouldn't be given what is the company going to do? Post bad things about the patent? I think the more open the patent registering system the better.

Why not just approve all patents?

[slashdot.org]

Seriously, that's pretty much what's happening anyway. The only way to find out if a patent is valid is through a court-case. I never understood why the patent office works the way it does. Why not just have people register whatever they want. If they find an infringer, they are going to have to prove that they really are infringing, and the infringer is going to have to prove that they are not in front of a judge and jury. Why try to (very ineffectively) do some of this in advance?

You could even add fines for entities registering patents which have unmentioned prior art (they obviously didn't do their research).

It would perhaps also keep investors from only investing in companies that _appear_ to have some interesting patents, but no real technology/knowledge/expertise to back it up. It would be nice to see more investment into companies that actually know how to make something and actually advance technology.

Re:Link to patent review project

[Meneguzzi]

I think that these companies might actually be very interested in a fair patent process, especially the large ones. My reasoning is the following: even if it would be in their individual interest to try and exploit the patent process, they also know that their ability to exploit this process will be similar to that of the other companies.
The benefits of a large company being able to jeopardize another are clearly offset by the fact that they can be pushed back. This translates into every company spending large sums of money to maintain a legal team just to handle the "patent fast-talk". This is not in their best interest, and in the end this will probably escalate ad infinitum. So, if they all agree to use the system fairly, they can put that extra "lawyer money" into doing actual research, improving their chances to survive, rather than simply waste effort legally fighting other companies.

Re:Project Red Herring

[simong_oz]

It's like some persons who are clueless about patent reality thought of a new solution at the round table.

Even worse, it's a solution to a problem which doesn't actually exist. The vast majority of people think they understand the patent process but simply don't. Publication is a vital part of the process, as is prior art assessment, demonstrating novelty and non-obviousness (to a "person skilled in the art"). You get a patent (ie. exclusive right to commercially prosper) for a set amount of time (20 years in most places) in exchange for disclosing the idea to everybody.

There is nothing to stop you filing a patent application which is an exact copy of an existing, granted patent. That patent application could go to PCT and be published at 18 months and then progress into national levels in individual territories. This could take 3-5 years and can happen without anyone in the patent office having actually examined the validity of that patent . If the patent application was published without an international search report, it might not even have been cross-referenced against the existing patent database!

Even granted patents are technically not valid until they have been challenged and upheld by a court.