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
    Dr. Patent, 8 May 2006 @ 10:16pm

    Nice try

    You can act like you're winning something if you want, your act doesn't change the facts. I hope you can do a better job right here in your own forum discussing issues. There's a problem though. You don't have any idea what you're talking about. At least "Mr. Pearce" has the good sense to offer a disclaimer e.g. "bearing in mind I haven't read the patent." Techdirt never does that. They pretend like they know something. They dont. And whether one or twenty less patents issues is not of great concernt to me. But what I'm trying to get across to the anti-property rights morons here at Techdirt who talk a great game about something they know nothing about (a big problem with the MacWriters you find here), and even to you Mr Pearce (if that is your real name), is that there are already mechanisms in place to do just the kind of thing the "author" is blathering about. There is already a longstanding peer review system, there is already a provision for art to be filed with the patent office for defensive purposes and there is third party re-exam (and a handful of other mechanisms). Now its time for the ninnies to stop whining. Unfortunately for the deconstructionists and the anarchists here at Techdirt acknowledging the existance of these mechanisms would take away the opportunity to patent-bash, whine, and pretend like they know something. They'd also have to admit what morons they are. I'm not holding my breath.

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