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. icon
    Mike (profile), 17 Sep 2008 @ 12:21pm


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

    MLS, you and I have had detailed discussions on the question of patent obviousness. Going "anonymous" doesn't create the need for me to repeat them.

    Obviousness is different from "already exists." The standard is for a patent to be BOTH new AND non-obvious.

    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".

    I would argue this is incorrect, but you and I clearly view the patent system and resulting lawsuits in very different ways. There may be a tendency for overlcaiming to happen in some areas, but that doesn't mean that it doesn't happen across the board.

    I daresay that most familiar with the patent process recognize it as a generally unworkable method given its near total reliance on "volunteerism"

    Which was the point of my last paragraph. Always nice to confirm that you don't read before complaining about what we write.

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