Peer-to-Patent
Description
Christopher Wong and Jason Kreps:
"Peer-to-Patent was launched by New York Law School in cooperation with the USPTO; an historic initiative to open the patent examination process up to public participation. The program launched as a one year pilot on June 15, 2007, but showed enough promise after the first year to be granted a one year extension to further investigate the effects of public participation on the patent system. The program, upon consent of the inventor, posts published patent applications on the Peer-to-Patent website for 16 weeks, during which time any member of the public may review the application, discuss the application with others in the community, submit prior art relevant to the patentability of the claimed invention, denote the relevance of the prior art, and annotate prior art submitted by others to make the prior art more readily useful. Peer-to-Patent then forwards the best prior art, as rated by the community, to the USPTO for use by examiners in the actual examination of the patent application.
The pilot was implemented in Technology Center 2100 (TC 2100) of the USPTO, an art unit covering computer architecture, software, and information security. For the second year of the pilot, the program was expanded to also include patent applications pending in class 705, Business Methods and E-Commerce.
The area of software patents was an optimal test bed for piloting Peer-to-Patent, as it suffers greatly from the problems associated with the information deficit. As a result, Peer-to-Patent, in its present form, bears directly upon the open source community. The closed databases of prior art that examiners at the USPTO have access to do not contain evidence of many open source projects that would otherwise qualify as prior art were they accessible nor are examiners generally familiar with software developments that occurred prior to the aggressive patenting of software in the last 15 years. While the ultimate decision of patentability still lies with the USPTO, Peer-to-Patent has shown not only that people aware of open source projects are willing to participate, but also that it is a useful tool for getting open source documentation in front of the examiner. For example, a reviewer on the Sun Microsystems patent application Method and Apparatus for Delivering Device Drivers9 submitted a paper written by Klaus Knopper, an electrical engineer in Germany, entitled Building a self-contained auto-configuring Linux system on an iso9660 filesystem.10 Mr. Knopper’s company, Knopper.net, focuses on customized open source solutions while Mr. Knopper himself also works with developers on a freelance basis on a variety of IT projects based on free software. It is unlikely that documentation of Mr. Knopper’s open source product would have been accessible to an examiner at the USPTO.
This example also demonstrates the importance of obtaining an international field of participants, as the relevance of prior art is unaffected by national borders. To date, Peer-to-Patent has been visited by over 70,000 unique visitors in 157 countries/territories. While software patenting is more prolific in the U.S. than anywhere else, U.S. patents nonetheless affect the software industries and patenting trends in other countries. For this reason alone it is important for the international community to participate in a program that seeks to improve patent quality by way of reducing the number of non-meritorious patents that are granted.
Thus far, 56 applications that have undergone review on Peer-to-Patent have received first office actions. In 15 of these office actions, the examiner cited prior art references submitted through Peer-to-Patent as a basis for rejecting the patent application.
The success of Peer-to-Patent has not gone unnoticed. Many other national patent offices suffer from the same problems as the USPTO, namely, a significant backlog of applications, lack of time for examination, deficiency in personnel, and gaps in the accessibility of information.17 These agencies also understand the need for taking action. In 2008, the Japan Patent Office (JPO), with guidance from the Peer-to-Patent team, launched their version of Peer-to-Patent, called Community Patent Review.18 The Peer-to-Patent leadership hopes to launch a pilot with another national patent office later this year. The Center for Patent Innovations at NYLS, home to Peer-to-Patent, has also had preliminary discussions with the European Patent Office, the Canadian Intellectual Property Office, and IP Australia to adapt the Peer-to-Patent system for their respective patent offices.
Up until now, Peer-to-Patent has been limited in scope to U.S. patent applications pending in USPTO Technology Center 2100. If the program were to be implemented to cover all subject matter, it would need to handle a significantly greater number of patent applications, as last year the USPTO received over 450,000 patent applications. " (http://www.ifosslr.org/ifosslr/article/view/9/6)
Source
Kreps, Jason & Wong, Christopher (2009) 'Collaborative approach: Peer-to-Patent and the Open Source movement', IFOSS L. Rev., 1(1), pp 15 – 26