USPTO proposes pilot of Peer to Patent program

The Peer to Patent Project

The U.S. Patent and Trademark Office has partnered with the New York Law School to adopt the Peer-to-Patent program, which uses a volunteer peer review process to evaluate patents. In a briefing this morning, representatives from the USPTO, open source community and program sponsors IBM discussed the details of the program.

“The best information comes not necessarily from within a centralized agency, but from people who know from within the community… that can include scientists and innovators,” said Beth Simone Noveck, associate professor of law at the New York School of Law and designer of the program. Originally proposed back in July 2005, Noveck saw a need for a peer review process because she believes the current patenting process runs on outdated assumptions about technology and is crippled by bad documentation and a small workforce of patent examiners. The USPTO hopes the pilot program can start around Christmas of this year.

Under the program, patent applications would undergo a prior art submission process through peers and then would be reviewed by a board of experts. The unique aspect of the program is that potential patents would undergo a massive review process of volunteer reviewers, much like an open source community review. Noveck detailed a wikipedia-like information database and community and peer grading systems taken from auction site eBay and popular tech news resource Slashdot.org. Peers would be graded on expertise and their individual prior art submissions and comments would be graded as well. Although the process will be voluntary, patents under peer review could be eligible for 20 year terms instead of five year ones, creating an incentive for inventors and companies to take part in the program.

One big hurdle to clear for the program is getting laymen up to speed on the basics of patent evaluation, including what information and documents would count as prior art.

“I don’t think anyone here wants to spend five years learning how to be a patent reviewer while they’re working their real job,” said Robert Clarke, deputy director of the Office of Patent Legal Administration at the USPTO. One purpose of the conference was to inform the open source community about basic concepts and examples of prior art and the overall process of approval.

Establishing the Peer-to-Patent program would not require additional legislation. There is some legislation, including the Patent Reform Act of 2005 proposed by Rep. Lamar Smith (R-Tex.) which would change some of the fundamental processes of patent approval and appeal, including patent re-reviews. The most controversial change this legislation would make is awarding patents to the first persons to file the application, as opposed to the individuals or groups who originally invented the patentable process or object.