Patent review with a social networking spin

Social networking has taken on a new dimension at the United States Patent and Trademark Office (USPTO). It has been over a year since the USPTO, in collaboration with New York Law School, initiated the Peer-to-Patent Pilot, a venture designed to bring the benefits of peer review to the patent application process. If the decision to extend the program another year is any indication, the project has been a success.

Implemented in June 2007, the project was based on the idea that if academics, inventors and even potential rivals could submit information on publicly available patent applications, patent examiners would be in a better position to decide whether to issue a patent and its particular claims. The idea was driven in part by the increasing demands on patent examiners. According to a 2003 Federal Trade Commission Report, patent applications have doubled in the past 12 years and are increasing at a rate of approximately 10 percent per year[1]. The same report cites patent examiners who estimated they were now spending 25 hours or less to read and understand an application, search for and evaluate prior art, communicate with applicants, and request revisions.

The Peer-to-Patent website (http://www.peertopatent.org/) operates much like current social networking sites. Users create profiles by identifying such things as their name, professional role, education, interests and any organizational affiliations. After generating a profile, users can browse patent applications, discuss pending claims, and upload “prior art” (documents publicly available prior to a patent’s filing date that may require a patent application’s claims to be narrowed or rejected). Users are invited to “rate” prior art, and the 10 highest rated are sent to a patent examiner to review with the patent application. At the moment, only patent applications in certain fields of computer software and technology will be listed on Peer-to-Patent, and applicants must consent to their application being listing.

Patent examiners are not always best situated to locate prior art in arcane fields of technology or science, so public input is a great way to add integrity to the patent application process. If an examiner is unaware of a key piece of prior art simply because it had limited publication (as with, for example, handouts at scientific conferences) there is a risk a patent will issue improperly. Since an issued patent restricts the public’s ability to freely use the patented subject matter (and can even result on a premium being levied on a product), it is in the public interest to minimize the issue of improper patents.

Although there does not yet appear to be a Canadian initiative similar to Peer-to-Patents, the Canadian Intellectual Property Office (CIPO)has been looking for means to improve the patent examination process. At least as early as 2002, an official report indicated that CIPO was searching for means to accommodate the 30-50% growth in IP applications. [2]

There is still a lot of room to grow before the Peer-to-Patent project satisfies its goals, but at the moment it appears to be well on its way.