Peer-To-Patent About To Come Back?

from the will-it-actually-work-this-time? dept

We’ve been a bit critical of the Peer-to-Patent program that was tested in the US a couple years ago. The idea — which I appreciate — was that certain patent applications would be opened up in a “crowdsourcing”-style, for the wider community to provide evidence of prior art. My problem with it wasn’t the concept of involving others, but the idea that prior review during the application process would really be all that meaningful or useful in the long run. That’s because it’s often tough to get the necessary people to care about a bad patent or bad patent application until it’s being used against them. So the incentives to keep swatting down bad patents just isn’t that exciting. Second, the worst of the bad patents are ones that are asserted later, for something that seems completely different or unexpected, but which the patent holder claims violates their patent. It’s tough to predict that ahead of time. Finally, the program only focused on prior art, not obviousness, which is an even bigger issue.

Yes, you could argue that such a peer review system wouldn’t hurt, but it often felt like the program’s backers thought it would solve most of the problems of the patent system, where I can only see it maybe helping out at the margins. That’s why we weren’t surprised at all to find out that the program had quitely shut down last year and almost no one had noticed.

However, it appears they’re attempting a comeback. Eric Goldman forwarded us the following email (I’d link to the web version, which was included, but whatever crappy email software the company uses gives me control over Eric’s account at the link — so I could unsubscribe him if I wanted to — and I figure it’s best not to share that with the world). So, instead, I’ll just pass along the text:

We are happy to announce that Peer To Patent will be relaunching this October with a new platform and many new features that will immensely improve the efficacy of the program. The Peer To Patent Team has been hard at work readying the new platform for its third run and we are excited to share the new developments with all of you.
 
First, you all will immediately notice that we have updated the Peer To Patent website with a new interface. The new version is designed to handle applications from multiple patent offices, in order to simplify the process of contributing to all three Peer To Patent pilot programs.
 
Second, we are very excited to announce that we will be expanding the list of classifications that are eligible for review through the program. Some of these new classifications are organic compounds, telecommunications and life sciences. Many of the new classifications are quite different than those in previous renditions of Peer To Patent. We ask that you spread the word to fellow professionals that may be skilled in these arts so that we can continue to provide the outstanding level of peer review that previous classifications have enjoyed on the website.
 
In that spirit, we want to thank you all for the work you have put in during the past two iterations of Peer To Patent and express our anticipation that this will be our best year yet. David Kappos, Under Secretary of Commerce and Director of the United States Patent & Trademark Office, recently stated that, “the reviewers found significant prior art, especially in non-patent literature… Our mission as an agency is to get the best prior art in front of examiners. There clearly is value in the project.” It seems clear that we will improve, not only the quality of patents, but also the patent system as a whole. Let’s make sure that we all take the initiative to participate in the new installment of the Peer To Patent program.

I’m happy to support anything that will actually improve the overall patent system so that it enables innovation rather than hinders it, but I’m still not sure that this program will actually do very much, other than on the margins.

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Companies: uspto

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Comments on “Peer-To-Patent About To Come Back?”

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19 Comments
Richard Cauley (profile) says:

Prior art vs. obviousness

I am more than happy to get rid of crappy patents, but this process is a fly trying to melt an iceberg in my opinion. They’d make more progress putting crappy patents asserted in litigation into re-examination –which can be done by anyone, not just the parties. Also, obviousness is normally proven by using prior art (in combination with other prior art), so this is useful.

Christopher Wong says:

of note

It’s worth noting that what Mr. Masnick meant by Peer To Patent having “quietly shut down” was that the pilot expired at the time that had been planned when Peer To Patent was extended for an additional year and expanded to include additional subject matter. This correction was detailed in the comments section of that article by Mark Webbink, the Executive Director of the Center for Patent Innovations (home to Peer To Patent).

The suspension of the program at the end of the pilot was to allow the USPTO to assess the effectiveness of the program. The conclusion here should be self-evident.

Anonymous Coward says:

Sharing The Blame

The USPTO is perfectly well aware that they pass enormous numbers of junk patents, which should never have been granted in the first place. They have no real motive to stop this practice. However, when a patent is revealed as being a junk patent, they would really like to have someone else to blame. That is the real purpose of the Peer-to-Patent program.

There is also an element of getting someone else to do the USPTO’s job for it. Senior persons at the USPTO maintain the fiction that the reason those junk patents get through is those dreadful patent examiners not doing their job properly. The USPTO is hoping the community will step up and do the examiners job for them. The community will not be allowed to actually stop the flow of junk patents, but the community discussion will add a handy smokescreen.

The real reason for the junk patent problem is that every patent is a ticket to go to court. Then patent trolls can use that to run an extortion racket against anybody doing something that, they might be able to convince a judge, constitutes infringement. The source of the problem is the offense of patent infringement. The perfectly simple fix is to repeal the part of the law which makes patent infringement illegal. Get rid of it. Infringement is a silly concept. If someone has a patent they are sharing that technology with all comers. The inventors (or their company) are available to help anybody (for a fee) to implement the technology. Human beings work better when they cooperate, than when they fight.

Junk patents would largely go away because such a patent would cease to be a possible source of revenue. Nobody would hire the inventors named in a junk patent. With patent infringement gone as a concept, so also would be all patent infringement court cases. There would still be some junk patents, because there will always be deluded people who think they have invented something when they have not. However, the few remaining junk patents would do no harm since they cannot be used for extortion.

Anonymous Coward says:

The only obviousness problem here...

… is that the author doesn’t know the first thing about patent law, let alone having any data to support any of his claims.

“Finally, the program only focused on prior art, not obviousness, which is an even bigger issue.”

psst – without prior art, an examiner cannot make an obviousness rejection.

Anonymous Coward says:

Peer to Patent is the brainchild of a group led largely by a group of academics, not one of whom has ever practiced, or is even admitted to practice, patent prosecution before the USPTO, and this is a major flaw. Theirs is an incredibly naive view of how the process of prosecuting a patent application actually works, in no large measure due to the fact that their academic credentials reflect familiarity with Title 35, but virtually no familiarity, if any, with the myriad of other critical materials such as Title 37 to the Code of Federal Regulations, the Manual of Patent Examining Procedure, and the policies internal to the USPTO that also govern the day to day operation of the USPTO and the manner by which it proceeds in performing its duties as tasked under Title 35.

Thus, at best it can only operate at the most extreme margins of the process (and a razor thin margin at that), a margin of little, if any, meaningful utility.

The concept reads nice on paper, but as noted by MM above it is flawed in numerous respects, not the least of which is securing the dedicated cooperation of subject matter experts.

Hence, the process will be slightly expanded to once more gather some data, the data will be messaged to present the process in as favorable a light as possible, the program will be declared a resounding success, and it will then once more slip into obscurity and quietly suffer the indignity of being terminated.

Gene Cavanaugh (profile) says:

Peer to Patent

I share your concerns, and appreciate the public service you have performed by bringing it up.
However, there is an additional, much more sinister aspect of this effort:
If the Peer to Patent effort is manipulated, big problems! A patent troll, for example, could say to the Court “this was presented to the general public on the Peer to Patent program, and no serious objections were raised – obviously, at that time (note: patentability is determined by the time of FILING anywhere in the world (earlier in the US, which is hanging on to an obsolete business model) it was VALID!
This would be a VERY persuasive argument that we don’t need.

Lawrence D'Oliveiro says:

Disprove The USPTO Out Of Existence

I like a reader comment from here that suggests getting the USPTO to approve a patent for a device that will generate patent applications which are guaranteed to be rejected by the USPTO. Then the fact that they accepted the patent could be somehow used in a Cantor-style diagonalization construction to prove that the USPTO cannot exist. 🙂

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