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
    Gene Cavanaugh, 18 Sep 2008 @ 9:33am

    Patenting peer review

    While I basically agree with Michael, I will say the problem is not as simple as it is portrayed.
    Large companies originally used "defensive" (overly broad, "catch everything in one net") patenting to cut down on nuisance-type claims against them. By making patent litigation too expensive for all but large companies, they succeeded. Now defensive-type patenting is being used against them, thus all the cries of "foul".
    What we need is to return to the original purpose of patenting; narrow "Jepson" type patents that cover ONLY the invention. Problem is, the interlude between styles will be painful for all concerned.
    I am doing my part - I now do ONLY Jepson-type (so-called "small entity" type) patenting, even though it is mostly a labor of love (small inventors don't have a lot of money, so I don't make much money). The USPTO is trying mightily to do their part - but as long as Congress looks to large entities for the funds to get them reelected, not much chance!
    So, what to do? CAMPAIGN FINANCE REFORM, then we will see the changes we MUST have!

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