Peer to patent
Encyclopedia
The Peer To Patent project is an initiative that seeks to assist patent offices in improving patent quality by gathering public input in a structured, productive manner. Peer To Patent is the first social-software project directly linked to decision-making by the federal government.
An initial pilot project in collaboration with the United States Patent and Trademark Office
(USPTO) was completed June 15, 2009. That pilot examined more than 220 patent applications in the fields of software and business methods. The Peer To Patent project has issued two anniversary reports from the initial pilot ( and), and a final report from the initial pilot is pending.
Following the conclusion of the initial pilot the USPTO undertook an evaluation of Peer To Patent assisted by students from Worcester Polytechnic Institute. That evaluation concluded that the program had merit and should be continued. On October 19, 2010, the USPTO and New York Law School jointly announced a new pilot program commencing October 25, 2010, and continuing through September 30, 2011 (with the review period extending through December 31, 2011). This new pilot will not only include patent applications covering subject matter included in the initial pilot, it will now include telecommunications, speech recognition, translation, biotechnology, bioinformatics and biopharmaceuticals.
Other patent office
s involved in pilot programs include IP Australia
, the Japan Patent Office
, and the Korean Intellectual Property Office
. The UK Intellectual Property Office announced on November 4, 2010, that it would commence a pilot in 2011 and the pilot commenced on 1 June 2011.
, a key driver of technological progress and economic vitality. When the patent system functions correctly, it rewards only meritorious inventions—those that are useful, novel
, and not obvious
. This in turn encourages more people to exercise their ingenuity and effort to create new inventions. However, for a proper balance to be struck, the system must avoid awarding patents to discourage inventions that lack merit. When the system becomes inconsistent in recognizing true invention, inappropriately issued patents become obstacles for innovation in that technology area. This raises, directly or indirectly, the costs of doing business in that particular area.
The number of patents in the most active jurisdictions (including the ones piloting Peer-to-Patent) has grown over the past few decades.
The rise in patent application
s has also placed stress on the patent offices themselves. For example, the USPTO October 31, 2010 had a backlog
of about 700,000 patent applications, which is one and a half times the highest number of applications the USPTO has processed in any given year.
Peer To Patent is focused on helping patent offices perform high-quality examinations of pending patent applications by enlisting the public to help find and explain prior art
. Prior art are references that predate the date of conception of at least some of the features of a given claimed
invention. Prior art can include earlier patents, academic papers, magazine articles, web pages, and even physical examples. Patent examiners compare a claimed invention with the prior art to determine if a given invention is both new (i.e. novel
) and not obvious
to a person of ordinary skill
and creativity
of the invention.
Prior to the initiation of Peer To Patent, U.S. patent examiners had the sole responsibility for searching for prior art. Patent examiners have a time budget of a few hours in which to conduct such searches. Peer To Patent attempts to improve the patent process by markedly expanding the prior art search. The reasoning behind the project is that if prior art exists for an invention, particularly non-patent prior art, someone in the world knows about it. This knowledgeable person may be a competitor in the same field, a student or professor, or the owner of an earlier embodiment of the invention. Peer To Patent encourages such people to submit examples of prior art and creates communities of people worldwide who are interested in discovering prior art.
Peer To Patent uses social software
features to facilitate discussion amongst groups of volunteer experts. Users can upload prior art references, participate in discussion forums, rate other user submissions, add research references, invite others, and more. This helps the examiners focus their attention on the submission(s) of prior art that have the highest relevance to an application.
Attempts to involve the public in government decision-making (other than voting and referenda, which are frequently powerful, but are also intermittent and very restrictive of the public's capacity for subtle, expressive input) previously fell into two categories, both usually of minimal impact:
The paradigm underlying Peer To Patent is relatively novel, and involves clear goals, direction, and structure. The model is related, however, to many notions of civil society
, particularly the theories deliberative democracy
, communicative action
(Jürgen Habermas
), and strong democracy
(Benjamin Barber
). The more immediate underpinnings are best described in a series of papers by the creator of Peer to Patent, Beth Simone Noveck
of New York Law School
. Relevant papers include:
The promise of Peer To Patent also draws on the success of various other movements that have created effective, productive communities on the Internet from far-flung individuals: free software
and open-source software
development, peer-to-peer
systems for the collaborative sharing of data and computer processing, and Wikipedia
.
To be eligible for Peer To Patent review, a patent application must be filed during the period covered by the pilot. Furthermore, the USPTO tries to provide a representative sample of current patents by limiting the number of applications from any given applicant.
Incentives for submitting an application to the project include:
Applicants follow a procedure described on the project's web site to submit patent applications for review.
tags, are useful to help other experts find prior art. The review process emphasizes and supports group collaboration in the following ways.
The steering committee includes patent attorneys from major patent-holding companies. The computer industry provides most of the steering committee members, since the initial pilot focused on Technology Center 2100.
Peer To Patent is funded by project sponsors and by the USPTO. The sponsors include:
license.
A description of the technology used on the site is stated in their first anniversary report,
One feature of the Peer To Patent site allows participants to rate each others' comments, just as they now rate each others' prior art submissions. A future stage of the project may allow patent examiners to consult the public during the office action, so that the public not only submits prior art but helps examiners better understand the relevant subject matter.
More broadly, Peer To Patent shows how the public can become more self-governing by interacting in an organized manner with government officials. Elements of this interaction include:
Up-to-date statistics about the number of patent applications submitted to Peer To Patent, the number of community participants searching for prior art, and the amount of discussion around each patent can be obtained from the Peer To Patent web site.
Some highlights from the First Anniversary report:
Here is a sampling of objections aired in various forums:
An initial pilot project in collaboration with the United States Patent and Trademark Office
United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
(USPTO) was completed June 15, 2009. That pilot examined more than 220 patent applications in the fields of software and business methods. The Peer To Patent project has issued two anniversary reports from the initial pilot ( and), and a final report from the initial pilot is pending.
Following the conclusion of the initial pilot the USPTO undertook an evaluation of Peer To Patent assisted by students from Worcester Polytechnic Institute. That evaluation concluded that the program had merit and should be continued. On October 19, 2010, the USPTO and New York Law School jointly announced a new pilot program commencing October 25, 2010, and continuing through September 30, 2011 (with the review period extending through December 31, 2011). This new pilot will not only include patent applications covering subject matter included in the initial pilot, it will now include telecommunications, speech recognition, translation, biotechnology, bioinformatics and biopharmaceuticals.
Other patent office
Patent office
A patent office is a governmental or intergovernmental organization which controls the issue of patents. In other words, "patent offices are government bodies that may grant a patent or reject the patent application based on whether or not the application fulfils the requirements for...
s involved in pilot programs include IP Australia
IP Australia
The Australian Patent Office is a division of IP Australia which is an agency of the Australian Department of Innovation, Industry, Science and Research. APO issues patents for inventions. APO was established in 1904 by the Commonwealth of Australia and since 1998 has been located in one building,...
, the Japan Patent Office
Japan Patent Office
The Japan Patent Office is a Japanese governmental agency in charge of industrial property right affairs, under the Ministry of Economy, Trade and Industry...
, and the Korean Intellectual Property Office
Korean Intellectual Property Office
The Korean Intellectual Property Office is the patent office and intellectual property office of South Korea. In 2000, the name of the office was changed from "Korean Industrial Property Office" to "Korean Intellectual Property Office". It is located in Daejeon Metropolitan City...
. The UK Intellectual Property Office announced on November 4, 2010, that it would commence a pilot in 2011 and the pilot commenced on 1 June 2011.
Justification and purpose
Patents go to the heart of inventionInvention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
, a key driver of technological progress and economic vitality. When the patent system functions correctly, it rewards only meritorious inventions—those that are useful, novel
Novelty (patent)
Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application....
, and not obvious
Inventive step and non-obviousness
The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented....
. This in turn encourages more people to exercise their ingenuity and effort to create new inventions. However, for a proper balance to be struck, the system must avoid awarding patents to discourage inventions that lack merit. When the system becomes inconsistent in recognizing true invention, inappropriately issued patents become obstacles for innovation in that technology area. This raises, directly or indirectly, the costs of doing business in that particular area.
The number of patents in the most active jurisdictions (including the ones piloting Peer-to-Patent) has grown over the past few decades.
The rise in patent application
Patent application
A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
s has also placed stress on the patent offices themselves. For example, the USPTO October 31, 2010 had a backlog
Backlog of unexamined patent applications
Although not clearly defined, the backlog of unexamined patent applications consists, at one point in time, in all the patent applications that have been filed and still remain to be examined. The backlog was said to be 4.2 million worldwide in 2007, and, as of 2009, it reportedly continues to grow...
of about 700,000 patent applications, which is one and a half times the highest number of applications the USPTO has processed in any given year.
Peer To Patent is focused on helping patent offices perform high-quality examinations of pending patent applications by enlisting the public to help find and explain prior art
Prior art
Prior art , in most systems of patent law, constitutes all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality...
. Prior art are references that predate the date of conception of at least some of the features of a given claimed
Claim (patent)
Patent claims are the part of a patent or patent application that defines the scope of protection granted by the patent. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent application...
invention. Prior art can include earlier patents, academic papers, magazine articles, web pages, and even physical examples. Patent examiners compare a claimed invention with the prior art to determine if a given invention is both new (i.e. novel
Novelty (patent)
Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application....
) and not obvious
Inventive step and non-obviousness
The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented....
to a person of ordinary skill
Person having ordinary skill in the art
The person having ordinary skill in the art , the person of ordinary skill in the art, the skilled addressee, person skilled in the art or simply the skilled person is a legal fiction found in many patent laws throughout the world...
and creativity
KSR v. Teleflex
KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 , is a decision by the Supreme Court of the United States concerning the issue of obviousness as applied to patent claims.-Case history:...
of the invention.
Prior to the initiation of Peer To Patent, U.S. patent examiners had the sole responsibility for searching for prior art. Patent examiners have a time budget of a few hours in which to conduct such searches. Peer To Patent attempts to improve the patent process by markedly expanding the prior art search. The reasoning behind the project is that if prior art exists for an invention, particularly non-patent prior art, someone in the world knows about it. This knowledgeable person may be a competitor in the same field, a student or professor, or the owner of an earlier embodiment of the invention. Peer To Patent encourages such people to submit examples of prior art and creates communities of people worldwide who are interested in discovering prior art.
Peer To Patent uses social software
Social network service
A social networking service is an online service, platform, or site that focuses on building and reflecting of social networks or social relations among people, who, for example, share interests and/or activities. A social network service consists of a representation of each user , his/her social...
features to facilitate discussion amongst groups of volunteer experts. Users can upload prior art references, participate in discussion forums, rate other user submissions, add research references, invite others, and more. This helps the examiners focus their attention on the submission(s) of prior art that have the highest relevance to an application.
Theoretical underpinnings
An understanding of Peer To Patent's philosophical basis is valuable in order to comprehend its operation. The project also has a technological basis, lying in the potential for Internet technologies to structure public input into government processes much more effectively than agencies and legislators have done in the past. Thus, Peer to Patent is more than an intervention into the patent system; it serves as a demonstration of the potential to bring the public more fully into its own governance.Attempts to involve the public in government decision-making (other than voting and referenda, which are frequently powerful, but are also intermittent and very restrictive of the public's capacity for subtle, expressive input) previously fell into two categories, both usually of minimal impact:
- Free-form online forums. These are useful for the exchange of information, but lack the structures that would permit the formation of coordinated groups and sustained, constructive planning between the public and government officials.
- Web sites with suggestion forms. These tend to draw ill-considered comments from marginally committed participants, lack mechanisms for follow-through, and provide no support for knowledgeable individuals to coordinate their efforts.
The paradigm underlying Peer To Patent is relatively novel, and involves clear goals, direction, and structure. The model is related, however, to many notions of civil society
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
, particularly the theories deliberative democracy
Deliberative democracy
Deliberative democracy is a form of democracy in which public deliberation is central to legitimate lawmaking. It adopts elements of both consensus decision-making and majority rule. Deliberative democracy differs from traditional democratic theory in that authentic deliberation, not mere...
, communicative action
Communicative action
Communicative action is a concept associated with the German philosopher-sociologist Jürgen Habermas. Habermas uses this concept to describe cooperative action undertaken by individuals based upon mutual deliberation and argumentation...
(Jürgen Habermas
Jürgen Habermas
Jürgen Habermas is a German sociologist and philosopher in the tradition of critical theory and pragmatism. He is perhaps best known for his theory on the concepts of 'communicative rationality' and the 'public sphere'...
), and strong democracy
Strong Democracy
Strong Democracy: Participatory Politics for a New Age by Benjamin R. Barber was published by the University of California Press in 1984 and republished in a twentieth anniversary edition in 2004...
(Benjamin Barber
Benjamin Barber
Benjamin R. Barber is an American political theorist and author perhaps best known for his 1996 bestseller, Jihad vs. McWorld.-Career:...
). The more immediate underpinnings are best described in a series of papers by the creator of Peer to Patent, Beth Simone Noveck
Beth Simone Noveck
Beth Simone Noveck was the United States deputy chief technology officer for open government and led President Obama's Open Government Initiative. Based at the White House Office of Science and Technology Policy until January 2011, she is an expert on technology and institutional innovation...
of New York Law School
New York Law School
New York Law School is a private law school in the TriBeCa neighborhood of Lower Manhattan in New York City. New York Law School is one of the oldest independent law schools in the United States. The school is located within four blocks of all major courts in Manhattan. In 2011, New York Law School...
. Relevant papers include:
- "Democracy of Groups" explains that "self-constituting groups" of volunteers can create value beyond what the individuals in them could accomplish alone. If formed online, such groups require tools to visualize their relationships and formalize contrasting approaches, so the groups can interact productively. New legal categories should also be created to recognize self-constituting groups—just as special categories for corporations now exist—and give them a voice.
- "Electronic Revolution in Rule-Making" criticizes the doctrine of the "insulated bureaucrat" who has been assumed by governments to be the most effective and impartial judge of policy. The paper calls on more democratic input from "on-going communities of interest and expertise," but explains that government attempts to solicit such input generally fail because there is no process to let communities collaborate on input or to fashion input into a form that policy-makers can use. The article points to effective techniques such as allowing individuals to comment on each other's suggestions, providing tools for collaborative editingCollaborative editingCollaborative editing is the practice of groups producing works together through individual contributions. Effective choices in group awareness, participation, and coordination are critical to successful collaborative writing outcomes. Most usually it is applied to textual documents or...
to bring up the quality of the suggestions, and allowing discussions with group moderation. Social norms and technological innovations must go hand in hand.
The promise of Peer To Patent also draws on the success of various other movements that have created effective, productive communities on the Internet from far-flung individuals: free software
Free software
Free software, software libre or libre software is software that can be used, studied, and modified without restriction, and which can be copied and redistributed in modified or unmodified form either without restriction, or with restrictions that only ensure that further recipients can also do...
and open-source software
Open-source software
Open-source software is computer software that is available in source code form: the source code and certain other rights normally reserved for copyright holders are provided under a software license that permits users to study, change, improve and at times also to distribute the software.Open...
development, peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
systems for the collaborative sharing of data and computer processing, and Wikipedia
Wikipedia
Wikipedia is a free, web-based, collaborative, multilingual encyclopedia project supported by the non-profit Wikimedia Foundation. Its 20 million articles have been written collaboratively by volunteers around the world. Almost all of its articles can be edited by anyone with access to the site,...
.
Operation of the project
The process described in this section is that used for the USPTO pilot.Patent applicants
The USPTO pilot, officially announced in the USPTO’s Official Gazette of 26 June 2007, was initially restricted to patent applications from Technology Center 2100 (Computer Architecture, Software and Information Security) that are voluntarily submitted to the project by the owner/assignee. The extended pilot has expanded to include so-called Business Methods patents (class 705) that fall under Technology Center 3600.To be eligible for Peer To Patent review, a patent application must be filed during the period covered by the pilot. Furthermore, the USPTO tries to provide a representative sample of current patents by limiting the number of applications from any given applicant.
Incentives for submitting an application to the project include:
- Expedited review. Public review begins one month after publication of the application. Review continues for four months, after which the patent examiner conducts an expedited examination of the patent application.
- Potentially stronger patents. If Peer to Patent review works as expected, patents that survive the process have already undergone considerable scrutiny and will be less at risk of a successful challenge later.
- Public service. Applicants can feel they are contributing to a valuable experiment in new models and technologies for public decision-making.
Applicants follow a procedure described on the project's web site to submit patent applications for review.
Community review
After a patent is published on the Peer To Patent web site, the public can post not only instances of possible prior art, but other useful comments such as common industry terms that might describe the patent. These terms, or FolksonomyFolksonomy
A folksonomy is a system of classification derived from the practice and method of collaboratively creating and managing tags to annotate and categorize content; this practice is also known as collaborative tagging, social classification, social indexing, and social tagging...
tags, are useful to help other experts find prior art. The review process emphasizes and supports group collaboration in the following ways.
- Communication: To notify people who sign up on the web site about new applications, summaries are distributed regularly by email. People visiting the web site can easily see the titles of recent applications and other useful information.
- Productivity: To keep discussion constructive and on topic, each application's site has a facilitator, whose job includes inviting new participants, reminding participants of their goals, and flagging inappropriate postings.
- Self-regulation: A key contribution by participants is to rate prior art submitted by their fellow participants for a particular application. The ten pieces that receive the highest rating are submitted at the end of the review period to the patent examiner assigned to the patent. This limit prevents the examiner from being overwhelmed by a flood of prior art.
- Community-building: a critical aspect of Peer-to-Patent is creating a sense of community among volunteers, which leads to the likelihood of continued participation and can entice volunteers with side benefits. Volunteers describe their interests and qualifications in their profiles, invite colleagues to join the discussions, respond to each others' comments, and enhance the reputations of productive volunteers by giving "thumbs-ups" to their prior art submissions. Examples of potential side benefits are job signaling (demonstrating skills that can lead to job opportunities for students or consultants) and finding colleagues for research projects.
The office action
The role of the patent examiner in Peer To Patent remains the same as with traditional applications, except that Peer to Patent applications move to the head of the queue, to reward patent applicants who participate, and the patent examiner is forwarded the ten highest rated submissions of prior art from the Peer To Patent community to aid in their examination.Governance
The Peer To Patent project is an independent project set up by New York Law School and operated through the school's Center for Patent Innovations. An agreement between the USPTO and Peer To Patent allows the project to submit prior art to USPTO examiners.The steering committee includes patent attorneys from major patent-holding companies. The computer industry provides most of the steering committee members, since the initial pilot focused on Technology Center 2100.
Peer To Patent is funded by project sponsors and by the USPTO. The sponsors include:
- Article One PartnersArticle One PartnersArticle One Partners, L.L.C. is a venture-funded online prior art search community based in New York City, New York.-History:The company was incorporated in November 2008 by founder Cheryl Milone...
- General ElectricGeneral ElectricGeneral Electric Company , or GE, is an American multinational conglomerate corporation incorporated in Schenectady, New York and headquartered in Fairfield, Connecticut, United States...
- Hewlett Packard
- IBMIBMInternational Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
- MicrosoftMicrosoftMicrosoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
- Open Invention NetworkOpen Invention NetworkThe Open Invention Network is a company that acquires patents and licenses them royalty free to entities which, in turn, agree not to assert their own patents against Linux and Linux-related systems and applications.-History:...
- Red HatRed HatRed Hat, Inc. is an S&P 500 company in the free and open source software sector, and a major Linux distribution vendor. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina with satellite offices worldwide....
Technology
Except where noted, content on the site is available for noncommercial use through a Creative CommonsCreative Commons
Creative Commons is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as Creative Commons...
license.
A description of the technology used on the site is stated in their first anniversary report,
- "The Peer To Patent Web site is built using open source technologies. It is an Internet application implemented using Ruby on RailsRuby on RailsRuby on Rails, often shortened to Rails or RoR, is an open source web application framework for the Ruby programming language.-History:...
with a MySQLMySQLMySQL officially, but also commonly "My Sequel") is a relational database management system that runs as a server providing multi-user access to a number of databases. It is named after developer Michael Widenius' daughter, My...
database on the LinuxLinuxLinux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
operating system. The system infrastructure includes hosted Web servers and database servers, as well as load balancers for traffic management. Interactive features include threaded discussions, e-mail alerts, RSS feeds, social bookmarks, video clips, tagging, ratings, and more."
Future evolution
The success of the initial pilot will likely lead to a gradual expansion of Peer To Patent to cover more and more categories of patents; for example the second U.S. pilot has been expanded to include speech recognition, telecommunications, biotechnology, and bioinformatics. Channels, standards, and protocols will be created to let inventors and other participants in the process integrate their own data and work flows.One feature of the Peer To Patent site allows participants to rate each others' comments, just as they now rate each others' prior art submissions. A future stage of the project may allow patent examiners to consult the public during the office action, so that the public not only submits prior art but helps examiners better understand the relevant subject matter.
More broadly, Peer To Patent shows how the public can become more self-governing by interacting in an organized manner with government officials. Elements of this interaction include:
- Clear goals
- Transparency, created by publicizing and archiving all interactions
- A guarantee that government officials with the power to make decisions will actually take the public input into serious consideration
- Building trust among the community and the ability to listen to each other
- Filtering and rating tools to improve the quality of results
- Visualization tools that allow participants to quickly investigate each other's qualifications and viewpoints, group themselves into caucuses, and see how many people support each position
Evaluation
As of November 24, 2010, there had been 557,560 page views from 114,395 unique viewers in 173 countries or territories. More than 2, 800 people signed up to be reviewers.Up-to-date statistics about the number of patent applications submitted to Peer To Patent, the number of community participants searching for prior art, and the amount of discussion around each patent can be obtained from the Peer To Patent web site.
Some highlights from the First Anniversary report:
- Peer To Patent attracted more than 2,000 peer reviewers.
- The first 27 office actions issued during the pilot phase showed use of Peer To Patent submitted prior art in nine rejections
- On average, citizen-reviewers contributed 6 hours reviewing each patent application in the pilot
- Although USPTO rules permit third-party prior art submissions on pending applications (but only before the applications have been published, or before a notice of allowance is issued, whichever comes first), the average number of prior art submissions on Peer To Patent applications was 2,000 times that of standard rule-based submissions.
- 92% of patent examiners surveyed said they would welcome examining another application with public participation, while 73% of participating examiners want to see Peer-to-Patent implemented as a regular office practice.
- 21% of participating examiners stated that prior art submitted by the Peer To Patent community was "inaccessible" directly to USPTO examiners.
- Prior art submissions by Peer-to-Patent reviewers were four times as likely to include non-patent literature (any document that is not a patent, including Web sites, journals, textbooks, and databases) as compared to prior art submissions by applicants.
Criticisms
Criticism of the Peer to Patent project range from its goals to its likelihood of success. For instance, criticisms can be found in comments posted to two articles favorable to Peer To Patent on the well-known Patently Obvious (Patently-O) blog: articles about the announced launch and the actual launch of the pilot.Here is a sampling of objections aired in various forums:
- The patent system is too fundamentally out of kilter to be fixed by examining and rejecting individual patents.
- By reviewing patents that belong to categories some people think do not deserve patents (notably software), Peer To Patent implicitly endorses the existence of such patents.
- The problem with many bad patents does not involve the existence of prior art, but a definition by the patent office of "obviousness" that is too forgiving, and therefore allows obvious patents to be approved because they are not precisely the same as prior art.
- The participation process that works for free software and Wikipedia will not work for the patent system because it presents steep challenges of its own. Few people in the general public understand the unique use of language in patent applications or the stages through which an application passes. The current pilot has drawn masses of participants because of its novelty and because computer-related patents are a particularly contested policy area, but this is no guarantee that similar participation will be seen in other areas and over a long term.
- Potential infringers will be afraid to review patent applications because, if the patent is granted, the inventor could successfully argue in court that the infringer knew of the scope of the patent and therefore engaged in wilful infringement, potentially subjecting the infringer to triple damages. This assumes that assurances from the USPTO and Peer To Patent that reviewing an application does not constitute knowledge of the final patent are invalid and will be rejected in court.
- Third parties will be afraid to help overturn a patent application for fear that the applicant (particularly if it's a large company) will retaliate later.
- There are too many patent applications for the public to review every one adequately. Those who have the time and expertise to look for prior art will take their chances, waiting for the patent office to approve patents and then challenging the patents at the patent offices or in court.
- Third parties who submit prior art during the patent application cannot argue in favor of that prior art during the prosecution of the patent (the discussion between the examiner and the applicant). During this ex parte discussion, the applicant has a definite advantage in arguing his or her case. Third parties will therefore wait and reserve their prior art for court cases where they have an equal chance to argue their point. This argument rests on the premise that third parties are willing to assume the hundreds of thousands (or often millions) of dollars in costs that a court challenge requires.
- Large companies will devote resources to denying the applications of their competitors, and small companies will not be able to marshal the corresponding resources to knock out the patents of large companies. This argument assumes that the general public will not step up to the responsibility of reviewing patents.