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
    Cheryl_Milone, 17 Sep 2008 @ 11:49am

    The Need for Incentives

    “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.”

    I applaud Peer-to-Patent, and once we start seeing the results of their work – i.e. if overly broad patents are prevented as a result of their efforts – people will be more inclined to be involved.

    Another way to motivate people to review patents is to compensate them for their efforts. This approach really works: we see it brilliantly in the context of pull research technology – like Innocentive and topcoder.com – where the crowd is motivated to participate.

    “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.”

    That could work if they had the time. But how can examiners “go out looking” for the right reviewers when they’re already spread too thin? Patent officers do admirable work, but they only have an average of two hours to spend on prior art searches for each application.

    This is another reason why the patent system needs additional levels of review.

    I think that Peer-to-Patent can work, but I’m convinced it needs the support of the private sector.

    Cheryl Milone
    www.articleonepartners.com

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