Giving Peer Reviewed Patents A Shot

from the testing-it-out dept

Though the problems with the patent system are manifold, people on all sides of the debate should agree that it's problematic when patents are issued for obvious things, or in areas with significant prior art. One problem, which again should be uncontroversial, is that the USPTO is often ill equipped to do the necessary legwork to avoid mistakes. That wouldn't be such a problem if it were easy to overturn patents, but as it is, these mistakes can result in long and costly legal battles. One of the ideas that's been floated to solve the patent office's resource crisis is a system of peer reviews, much like that of an academic journal. The idea is that people who are trained in their areas, who care about the health of their field, would do a better job identifying problems with a given application. Also, since patents are only supposed to be granted on ideas "non-obvious to those skilled in the art," it makes sense to actually ask those skilled in the art for their opinions. It appears that the theory is slowly being put into practice, as the patent office is launching a pilot peer-review program, with the first public meeting scheduled for later this week. As Glenn Fleishman asks, could anyone really argue that, "Patent examiners don't have the right to see all prior art that's well known to the scientific, business, or other communities for which this patent is relevant." One potential complaint that some have raised, is that by employing interested parties, there will be a strong incentive to strike applications down for being obvious, either out of jealousy or personal agenda. But this argument states essentially that humans are fallible, a claim that could tarnish any system of human review. Furthermore, there are ways to mitigate this problem (by having a diverse group of peers, and still having examiners review the highlighted issues, for example) while still making the overall system much more robust than the current one. This won't solve all the problems, and certainly doesn't get at the deeper issues of what patents truly accomplish, but any system that could reduce the obvious patent mistakes is one worth trying out.

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  1. identicon
    Mike Masnick, 8 May 2006 @ 10:16pm

    What obviousness test?

    There is a legal test for obviousness that is performed with EVERY patent application.

    Oh really? Even the USPTO has said that the only test they conduct for obviousness is in looking at prior art. Prior art may not necessarily be the best indicator of obviousness. Since the OFFICIAL TEST is supposed to be non-obvious to those skilled in th art, I can't believe you're actually suggesting it's a BAD idea to ask those skilled in the art. That's the test they're SUPPOSED to use.

    The mere existence of prior art does not, in itself, suggest that more patents shouldn't be granted in this area. Quite the contrary. Its almost a foregone conclusion that if many patents (prior art) exist in an area, then there must be signficant interests at stake in that area. Interests that require patent protection.

    You practice patent law, right? Did you really just say that if an idea has prior art, it still deserves patents?

    And you make quite a statement that because an area has interest it "requires" patent protection. If you knew your history and your economics, you'd know that's false. Absolutely false.

    WHAT MISTAKES? Techdirt characterizes a "mistake" as any patent that is litigated (particularly against its corporate favorite)

    This is false. We do not say that any patent that is litigated is a mistake. However, we do point out patent mistakes when we see them. And, considering that many of the mistakes we've pointed out are later invalidated by the USPTO, it certainly seems like there's a basis for those claims. If even the USPTO is admitting they made mistakes, are we really so dumb for pointing out why those patents are invalid.

    Or do you believe that the USPTO is infallible? Even when they admit they're wrong?

    Duh, the PTO has been doing "peer review" for years. But thanks for the great ideas Techdirt.

    Not like this they haven't. If you bothered to read, rather than react in a kneejerk fashion, you'd notice that this is different. Once again, we come back to your reading comprehension.

    Despite what you claim, we're not just coming up with what we say out of nowhere. It has a real basis in economics. And, when we point out to you where you're absolutely wrong, you turn and run. Last time we pointed out where you were wrong, your response was "blah, blah, blah."

    Obviousness is not some opinion as to what is obvious, its an objective legal test based on dates of filing and dates of the so-called art.

    Ah, again. It goes back to the "art." But, that's a problem. If multiple people are developing the same idea at once, then innovation gets stagnated by giving a monopoly to only the first to come up with the idea (there's plenty of research to back this up). An obviousness standard is supposed to be based on the views of those skilled in the art. The appropriate test should involve those skilled in the art.

    The examiner has AN OBLIGATION to find the best available art.

    Yes, and as we've seen repeatedly, patent examiners are unable to find important prior art -- especially in new areas like software. Just because they have an obligation, doesn't mean it's happening. And, that's what this peer review system is designed to facilitate.


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