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
    angry dude, 9 May 2006 @ 7:05am

    Peer review for patents? Ha-Ha-Ha............

    OK, as somebody with a Ph.D. in physics, 10 publications in scientific journals and conference proceedings and one issued patent, I can only say that traditional peer review system DOES NOT work today even for scientific publications and will certainly not work for patents, especially the obviousness part of it.
    Einstein was extremely lucky to live in the beginning of the last century - he would not be able to publish his relativity theory in the Annalen der Physik - it would be shot down by anonimous peer reviewers.
    Anything more or less original and coming from some unknown person without affiliation with some established institution get rejected by scientific "peer review"
    I know it all too well from my own experience with publishing my own ideas in technical journals - ideas which form the basis of my patent and which are currently utilized across the entire industry (without asking me for a license, of course...)

    Certainly, anonimous "prior art" submission to facilitate patent examination isn't a bad idea by itself, it's just the examiner might be buried under the pile of submitted "prior art" not having any relevance to the patent in question.

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