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
    Hulser, 17 Sep 2008 @ 9:54am

    Peer review = 'moron in a hurry' review?

    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.

    Why not? I would think that one of the things that a "peer" would look at when reviewing a patent application was whether or not it was overly broad. The more sets of eyes you have on a patent, the more likely you are to predict some of the unintended consequences. Wouldn't the discovery of one of these sorta-if-you-squint infringements weigh on the side of rejecting the patent? And if so, then surely it would come up in a peer review.

    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.

    But isn't the point of the "moron in a hurry" argument that many patents have been granted where even a non-expert-in-the-field analysis would have shown that the idea was obvious or had prior art? In other words, the patents that get all of the attention as examples of the failings of the patent system are not the ones where only the experts realize that it's bogus, but instead the patents where even "the crowd" knows that it's just downright silly. So, if the general public can contribute to this process, maybe there would be some actual pressure on the patent reviewer to consider more factors instead of rubber stamping the patent.

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