Patent Commons

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A number of large companies are started to put their patents in a 'patent commons', as recently advocated by IBM:

“The IBM move is meant to encourage other patent holders to donate their own intellectual property in order to form what the company refers to as a "patent commons," a modern twist on shared public lands set aside under traditional laws." (,1367,66237,00.html?)


Jeff Howe:

"In late October 2005, the Berkeley political scientist Steven Weber was bringing some of the smartest people he knew into a Manhattan conference room to talk about the future of business. Weber and a co-author were writing a book about “open source methods of value creation” and wanted some heavyweights to “beat up our argument.” Invitees included a former adviser to Vice-President Al Gore, an editor from Harvard University Press, and various top executives at New York consulting firms. Then, just one day before the gathering, Weber’s host suggested he invite Beth Noveck, a professor at the New York School of Law and something of a provocateur in the legal fields. Weber vaguely remembered sharing bagels and lox with a smart, self-possessed woman at an Upper West Side deli a few years before, and extended the invitation. Noveck nearly turned Weber down. She was booked all day, she explained, but would try to stop by for an hour or two.

The following day dawned sunny and warm. Weber’s brain trust gathered inside a windowless conference room inside the plush offices of Monitor Consulting Group on Madison Avenue. Noveck showed up shortly after 11 AM. Weber sat her next to David Kappos, a lawyer who managed IBM’s patent portfolio. The two were soon engaged in an intense conversation. Noveck had recently created Do Tank, an online community of lawyers, scholars and students devoted to collaborative efforts at legal reform. Noveck was one of the legal field’s chief proponents of opening closed systems to public scrutiny, and the patent system was right in her cross-hairs.

It seems unusual that IBM would want to reform a system it has used to great advantage. The technology giant was awarded 3,621 patents in 2006—the 14th straight year in which the firm won more such concessions than any other company in the US. IBM spends roughly $5 billion per year in research, development and engineering , and its active portfolio exceeds 26,000 patents. But with such vast intellectual property holdings comes great expense. Since the early 1980s the number of patent disputes has tripled in the US, with the average cost of such litigation coming in around $2 million. Welcome to David Kappos’ daily headache. He didn’t have 26,000 patents. He had 26,000 targets for rapacious, frivolous, skull-crushingly complex lawsuits.

When the group broke up for lunch, Kappos and Noveck remained in the conference room, locked in animated discussion. Noveck had recently floated a radical proposal past a select group of colleagues: Put patent applications on a wiki, and invite the public at large to help guide the patent examiner. Applications would be posted online where anyone could read, review and comment on them. People with the relevant experience would be drawn to review patents in their fields of expertise, just as the community that tends the online encyclopedia, Wikipedia, self-organizes around areas of expertise. It would be, Noveck explained, a vast improvement over the current patent system.

The idea sounded familiar to Kappos, whose team at IBM was in fact discussing a similar approach. In recent years a consensus had emerged within the intellectual property field: The patent system was broken. The debate now revolves around how to fix it. Over 90 percent of patent applications are successful, giving rise to a rat’s nest of vague, overlapping patents. “We wind up in these fights over patents where we can’t tell what they mean, and the courts can’t tell what they mean, and even the patentees can’t tell you what they mean,” Kappos says. He and his team had come up with the idea of opening patents to peer-review, a system used by academic journals in which several organic chemists, say, are invited to comment on a paper written by one of their colleagues. But this didn’t go nearly as far as what Noveck was suggesting.

Noveck hadn’t taken her inspiration from academia, but the community production model employed by open source software as well as such contemporary Internet phenomena as Amazon’s user-generated product reviews, the online film database, and the Yahoo! Answers service, in which random people attempt—with surprisingly high rates of success—to answer your equally random questions. It’s hard to imagine any of these existing if it weren’t for a few steadfast iconoclasts propounding some very unorthodox ideas about how information should be produced and distributed. Such crowdsourcing efforts have essentially just adopted an open source approach to making products other than software. Noveck’s proposal was hardly the first to attempt to harness the wisdom inherently present in large, online communities. But it was one of the most radical because it aimed to overturn one of government’s most venerable functions—the awarding of legal protection for inventions and original ideas.

Kappos left the meeting intrigued, and a little scared. A few days later he called Noveck to continue the conversation and suggest they begin working together on the proposal. “I told her that we thought her plan was very powerful, but that we weren’t going down the road of asking the US Government to cede its sovereignty over granting patents,” recalls Kappos. Just the fact that the largest patent-holder in the world, IBM, and a Yale-trained law professor were discussing outsourcing patent review to the crowd was an indication of how far the model of production championed by the open source software movement had come.

Soon after their first meeting, Kappos ordered his attorneys to work with Noveck on her proposal to open the patent review process to the public comment. It was an unequivocal endorsement of the kinds of ideas that couldn’t have existed without open source software as an intellectual model. Although the plan seemed oddly radical for a company like Big Blue, in fact it conformed perfectly with the direction IBM had been moving in since radically retooling its core business model in the 1990’s. Where the company once protected its proprietary software with zeal, it now contributes thousands of programmer-hours to work on open source software projects—which bring in no revenue through licensing. It even donates some of its patents to the open source advocacy group Free Software Foundation. This is hardly philanthropy. According to the company, the income generated through providing “professional services” related to open source software has more than made up for the revenue it has lost through licensing proprietary software. The move has resulted in new innovations, new products and a greatly enhanced reputation for IBM within the tight-knit community of software programmers.

In December 2006 Noveck and Kapoos held a quiet, off-record meeting with some attorneys from the patent office. As it turned out, the patent office itself had been thinking about how it could tap the open source community. In 2004 President Bush had appointed Jon Dudas to head the USPTO, with the mandate of patent reform. The government attorneys told Kappos and Noveck that if they could arrange a meeting patent office would host it. In January 2006 IBM publicly launched the the “Peer-to-Patent Project,” a clever play on the term Peer-to-Peer, the popular file-sharing technology often used for illegal music downloads). The patent office, true to its word, hosted a symposium a few weeks later with some of the leading minds in intellectual property. Over the course of the year companies like Microsoft and General Electric agreed to participate in the trial project, which launched on June 15 of 2007. Though still a pilot project, Noveck has high hopes. By spring 2008, nearly 33,000 people had reviewed some 22 patents, and submitted 106 instances of prior art.

It marked a watershed moment for the open source movement." (

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