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Jonathan Erickson

Dr. Dobb's Bloggers

Peer-to-Patent: Citizen Patent Examiners

July 28, 2009

 Every now and then, an idea pops up that makes you wonder "why didn't I think about that?".  Such is the case with Peer-to-Patent.  But first some background...

Anyone who has spent any time looking into the U.S. patent system knows right off that it is a mess. Valid patent applications take forever to be processed, and those that appear to be invalid sail right through, prior art notwithstanding. That's my take anyway, at least after devoting a fair amount of time looking into the topic of software patents.

More often than not the blame for this patent morass falls on the shoulders of patent examiners, which leads to usual litany of excuses starting with being overworked and underpaid. Certainly the patent examiners I've spoken with do seem to be overworked, and by Google standards as underpaid as the rest of us. But they also are pretty smart. Every examiner I've talked to on the software patent front has had an advanced degree in computer science, mathematics, or related relevant field. Still, year after year the stack of patent applications gets bigger and bigger. What we have here is a pattern.

Luckily people a lot smarter than me have recognized this same pattern -- people like New York Law School professor Beth Simone Noveck, for instance. But Noveck did something I didn't: Instead of whining about the problem, she set out to solve it. And Peer-to-Patent is the result.

Peer-to-Patent is an organization that harnesses the collective knowledge and experience of citizen experts to help identify and evaluate relevant prior art for consideration by patent examiners. Peer-to-Patent's website was developed by the Community Patent Review Project of the Institute for Information Law and Policy at NY Law School.  Peer-to-Patent is responsible for the management of the Internet-based review process by the public. The pilot project was initially restricted to patent applications in the computer-related field, although later expanded to include automated business data processing technologies.

From all indications, the project has been a success. Over the two years of its existence, the Peer-to-Patent has registered more than 2,600 peer reviewers. People like me and you -- well, people like you anyway; I'm not expert enough -- who contribute prior art and perform related tasks. Putting this another way, Peer-to-Patent has contributed relevant prior art relied upon by the U.S. Patent and Trademark Office (USPTO) in more than 25 percent of the applications it handles. Since Peer-to-Patent launched, 66 office actions have been issued for applications that have undergone peer review on the Peer-to-Patent website. In total, the USPTO used Peer-to-Patent submitted prior art references to reject one or more claims in 18 patent applications. Additionally:

  • 75 percent of reviewers think that a third-party submission of prior art program like Peer-to-Patent should be incorporated into regular USPTO practice.
  • 69 percent of examiners think that a program like Peer-to-Patent would be useful if incorporated into regular office practice.
  • 67 percent of examiners believe Peer-to-Patent would be helpful in doing their job.
  • 12 percent of participating examiners stated that prior art submitted by the Peer-to-Patent community was inaccessible by the USPTO.

Among the Peer-to-Patent participants who have volunteered their time and expertise by submitting prior art or annotations used by the USPTO in making the determination of patentability are: Rob Cameron, for a cipher method and system for verifying a decryption of an encrypted user data key; Gabriel Gomez, for image inversion; Steven Pearson, for a method and apparatus for selectively executing different executable code versions which are optimized in different ways; and Abhay Porwal, for a smart drag-and-drop.

All in all, according to the Project's Second Anniversary Report, through April 2009, the public participated in the completed review of 71 applications in Year Two. For those applications the size of the communities ranged from 0 to 17 reviewers with an average of 3.5 active participants in a given community contributing either a comment to the discussion, an item of prior art, a research suggestion, or an annotation on the application. Of those 71 applications, 61 contained 217 items of prior art for an average of 3.6 references submitted per application.

I don't know about you, but I think this is pretty cool. And I'm not alone. The Peer-to-Patent Project was recognized by the White House Open Government Initiative as an innovative social networking program. Moreover, you'd think the program has saved the USPTO (and ultimately taxpayers) some money, what with all that free research being provided by volunteers and the website being provided by NY Law School.

That's the good news. The bad news is that the USPTO has chosen not to extend the program for the usual reasons: The USPTO has been hit just as hard as the private sector by the current state of the economy. However, that doesn't mean that Peer-to-Patent is shutting the doors. To date, Peer-to-Patent has operated from corporate and foundation grants with over half the money coming from the Omidyar Network. In addition, the program received grants from the MacArthur Foundation, CA, IBM, Microsoft, HP, GE, Intellectual Ventures, and Red Hat, among others, and Project leaders are looking for more permanent funding.

As for Peer-to-Patent creator Beth Simone Noveck, she was recently named Deputy Chief Technology Officer for Open Government for the Obama administration.

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