Is Peer Review Really Enough To Help The Patent System?

from the not-really dept

For a few years now, there's been a push to open up the patent process to peer review using a system called Peer-To-Patent. It launched a couple years ago, and the Associated Press is running an article suggesting that it can help fix many of the patent system's problems. While I'm not against the idea of Peer-to-Patent, it appears that supporters of the system are overplaying it, while downplaying the many weaknesses of the program.

First of all, the AP report makes the same mistake many people do in suggesting that prior art is the equivalent of obviousness. The two are separate conditions related to patent approval. You can have obviousness without prior art, so repeating the myth that prior art is what's needed to show obviousness doesn't help matters.

But the bigger problem, only mentioned briefly at the very end of the article, is that most of the time the problem with patent lawsuits is that no one who looked at the patent would have thought it actually applied to the technology that it's being used against. People are filing incredibly broad patents, waiting for others to create successful technologies that might, sorta-if-you-squint infringe -- and then suing. Those types of patents aren't caught by the peer review process. In fact, a big part of the problem is actually getting the right people to look at those patents while they're in the peer review stage. Most people don't have the time to sort through the Peer-to-Patent list and see if they spot anything that's relevant to them. So, the folks who are skilled in the art probably aren't looking, and the patent gets through -- and only becomes an issue later. If peer review is going to be useful, at the very least, examiners should go looking for those actually skilled in the art to get their reviews of the patent, rather than waiting for "the crowd" to come to them.
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Filed Under: patents, peer review, peer to patent


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  1. identicon
    Anonymous Coward, 17 Sep 2008 @ 8:11am

    "First of all, the AP report makes the same mistake many people do in suggesting that prior art is the equivalent of obviousness. The two are separate conditions related to patent approval. You can have obviousness without prior art, so repeating the myth that prior art is what's needed to show obviousness doesn't help matters."

    Can you elaborate a bit on this? Perhaps an example or two might help clarigy things.

    Re the last paragraph, using the word "most" is in my view an overstatement. It might be more accurate to note that in some technology areas there is a greater tendency for over-claiming, but these areas are few in number; most notably "software" and "business methods".

    Re "Peer-to-Patent", I daresay that most familiar with the patent process recognize it as a generally unworkable method given its near total reliance on "volunteerism". It used to be "in the days of old" (pre-1980s or thereabouts) that the then corps of patent examiners were quite good within their respective areas of technical expertise. After many years at their jobs, there was precious little they had not previously seen. This has changed, and not for the better, as newer generation examiners have come onboard at the USPTO and place almost total, slavish reliance on "keyword searches". Technological expertise has slowly given way to technological "snippet" expertise, and the system is all the less because of this change.

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