Beth Noveck recently published her most recent paper on Peer-to-Patent in the Harvard Journal of Law & Technology. As some of you know, Professor Noveck is on a mission to create a community-based open review system to assist patent examiners in determining whether an invention is patentable.
We know from several studies as well as anecdotal evidence that plenty patents are issued covering obvious ideas. It is hard work to find and sift-through prior art — not to mention the difficult task of comparing it to a patentee’s claimed invention. Obvious patents make the patent system look bad and drag-down the system.
One oft proposed quality promotion solution is to increase fees at the PTO and use the money to give Examiners more time to spend examining. This is a defensible answer, but it could end-up significantly increasing the cost of patenting.
Professor Noveck’s approach is to step outside the regulatory box and allow people in the community to review pending patent applications and provide relevant prior art. Prior art can be ranked and discussed through an electronic exchange entirely outside of the PTO. The results can then be submitted to the Examiner for review. At best, an Examiner may receive a ranked list of ten references with indications of how relevant portion of the reference read upon various claims.
Receiving a packet of relevant info from the Peer-to-Patent group is intended to make the Examiner’s job of weeding easier, but it will only work if there is a real community of techno-experts willing to put in time to prevent patent applications from issuing. Here, we can rely at least partially upon a competitive spirit — no one wants a competitor’s patent to issue, and the Peer-to-Patent approach provides a straightforward method to ensure that your path is not blocked. Several companies, including IBM and Microsoft have agreed to donate corporate time to assisting with the system.
I’m intrigued with the approach. I think it is a fresh idea with some real potential—and have agreed to serve on the board of directors. One way or the other, the proof will come this Spring when the pilot is expected to begin.