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To read comments to this article, go here
Peer to Patent Project Begins June 15
Thursday, June 07 2007 @ 05:42 PM EDT

The USPTO has released a press release reminding all of us that the New York Law School's Peer to Patent Project begins in a week.

It's a year-long project, a test, so the US Department of Commerce, which is over the USPTO, can study whether such public input is helpful. I know it can be. But it's up to you. I know from doing Groklaw that you have the skills to find prior art, so it's in the power of your hand to contribute meaningfully to this project, if you want to. Here's the AP account providing an interesting tidbit:

Some engineers and attorneys earlier this year questioned whether comments on a rival's application could make them vulnerable later to willful or deliberate infringement charges. But the program's director has said deliberate infringement laws apply to patents, not applications.

It's historic, in that it's never been tried before, letting the public provide the USPTO examiners with a helping hand. The goal is to find ways to block stupid patents at the applications input level, so they don't get approved, issue, and subsequently hurt people and companies. I think of it as bug spray to kill off stupid patents before they can multiply.


Yes, Groklaw's own Jill C. Carpenter, being brilliant again. She did one just for us, too:

Of course, the USPTO puts it more traditionally, "The goal of this project is to test whether the organized collection and submission of documents together with comments by the public will produce better examination results by presenting prior art known by the public to the examiner early in the prosecution, specifically before the first Office action."

Whew. I think I said it more clearly, but there you are. If you wish to think about participating, here's a paper by The Information Technology & Innovation Foundation (ITIF), "Patents Pending: Patent Reform for the Innovation Economy" [PDF] which recommends the project. So does Microsoft. But don't flip the page in disgust. So does IBM. Ditto Red Hat and Sun. From the AP account:

The one-year community review project will give outside experts in computer technology the opportunity to submit technical references relevant to the claims of a published patent application before an examiner reviews it, according to the PTO.

IBM Corp., Microsoft Corp., General Electric Co., Hewlett-Packard Co., CA Inc. and Red Hat Inc. have already agreed to public reviews of some software patent applications, and they have provided funding as well.

Other participants in the pilot, which is a joint initiative with the Community Patent Review Project at New York Law School's Institute for Information and Policy, include: Intel, Oracle Corp., Sun Microsystems Inc. and Yahoo Inc.

Basically, almost everyone. Me too, if you are willing. I know many wish that software and patents would just get a divorce. I do too, and some happy day the Supreme Court may just decide that issue. But for now, this can at least contain some of the horrible damage being done. This is a problem so huge that everyone agrees it exists, even if we don't share the same motives or goals.

If you'd like to know what the rules are for participating, here you go or just go directly to their paper about it. [PDF]. Here is the consent form [PDF] if you want a patent of yours to participate. If you wish to participate as a member of the public input squad, we do it through the New York Law School's website. You must register first. The USPTO is cooperating with NYLS, but it isn't controlling their part of the project. We can of course also work here as a group once a patent is posted and then collectively designate one person to provide the information to the NYLS site.

The rules are based on current law, which requires consent from the patent applicant before examiners can accept commentary from the public on prior art. So only volunteered applications will be considered in the pilot. That limits its effectiveness, but assuming that the study goes well, it may lead to changes in the law, since patent reform is in the air. Meanwhile, we can learn a great deal about how to find prior art. You never know when that might come in handy, eh?

The New York Times has a story about it today, that includes this:

The patent office is experimenting with the concept of opening the examination process to outsiders, inviting public peer reviews. On June 15, Mr. Dudas said, it will begin a pilot project for open reviews of software patents. The patents will be posted on a Web site, and members of the public with software expertise will be allowed to send the patent office technical references related to the patent claims.

But the pilot project applies only to applications in information technology, and only with the approval of the patent applicants. Public peer reviews without an applicant’s approval would be required for legislative changes.

The patent office has been instituting its own quality initiatives in recent years. And it has hired more examiners, adding 1,200 last year to bring its staff above 5,000.

The percentage of patent applications approved in the first quarter this year was 49 percent, down from 72 percent in 2000. “We’ve taken steps, and the result has been that a lot more patents are rejected,” Mr. Dudas said. “But those numbers also tell you there are a lot of bad patent applications.”

Obviously, something is going to be done, and either you contribute to help it get it right or you don't. But the article certainly highlights that the solution requires a change in the law. Here's the USPTO press release:

******************************

USPTO to Test Impact of Public Input on Improving Patent Quality in the Computer Technologies

Peer Review Pilot is Part of Agency Efforts to Promote Quality as Shared Responsibility

The Department of Commerce's U.S. Patent and Trademark Office (USPTO) today released details of a pilot project that could help expedite and improve the examination process in computer technologies. The Peer Review Pilot will give technical experts in computer technology, for the first time, the opportunity to submit annotated technical references relevant to the claims of a published patent application before an examiner reviews it.

"Studies have shown that when our patent examiners have the best data in front of them, they make the correct decision," said Jon Dudas, director of the USPTO. "Examiners, however, have a limited amount of time to find and properly consider the most relevant information. This is particularly true in the software-related technologies where code is not easily accessible and is often not dated or well documented."

The pilot is a joint initiative with the Community Patent Review Project (CPRP), organized by the New York Law School's Institute for Information and Policy. The pilot will begin on June 15, 2007 and will run for one year.

Technical experts in the computer arts registering with the CPRP website will review and submit information for up to 250 published patent applications. To ensure a broad cross section of computer technology is reviewed, no more than 15 applications will be allowed from any one person or organization.

Existing law allows USPTO to accept prior art from the public, but it doesn't allow the public to submit any commentary related to the art without the approval of the applicant. Thus, consent will be obtained from all applicants whose applications are volunteered and selected for this pilot.

To expedite review of applications used in the pilot, they will be assigned to an examiner as soon as a submission is received from the CPRP. This will shorten the time it normally takes in the computer arts from filing an application to a final decision. Only one submission from the CPRP of up to 10 annotated references will be accepted for each application in the pilot.

This pilot is just one facet of USPTO's broader efforts to find new ways to get the best information in front of examiners before they make a final decision on a patent application. To ensure a vibrant, modern patent system, USPTO also supports implementation of "applicant quality submissions" which would include search and support documents from applicants.

USPTO supports expanding the ability of third parties to submit to the USPTO information they believe is pertinent to a pending application, a concept included in patent modernization legislation now under consideration in the U.S. Congress. In combination, the peer review pilot, applicant quality submissions and expanded third party submissions encourage a highly participatory examination process that will lead to more efficient and effective review of patent applications.

For more information on the peer review pilot go here [PDF]


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