Thursday, July 14, 2005

NEW YORK LAW SCHOOL PROFESSOR PROPOSES PEER-REVIEW FOR PATENT APPLICATIONS: A proposal called "Peer to Patent" has been put forth by Beth Noveck, director of New York Law School's Institute for Information Law and Policy, to relieve the backlog of patents in the USPTO. Under the plan, the review process for patent applications would be turned over to tens or hundreds of thousands of experts in various fields who would collectively decide an application's fate via a massive rating system not unlike that of eBay.

The idea underlying the proposal is to allow patent applicants to benefit from the combined knowledge of field experts, ensuring that only the "worthiest" inventions get the 20-year grant of monopoly rights that come with an approved patent. By turning patent review over to field experts, applications will be evaluated by people who understand the issues rather than by an overburdened examiner who may have had to bone up quickly on a subject.

Under the plan, inventors who submit their work for peer review would be eligible for a 20-year patent. Inventors could also choose to use the existing system. However, in that case, patents would be granted for five years. Thus, Noveck argued, scientists would have an incentive to participate in the plan.

In addition, because the heart of Peer to Patent is a software system through which patent applications are filtered, Noveck hopes that it could be extended to include a bidding feature that would allow scientists to sell licenses for their patented inventions.

It's a good idea, although not a new one. But while it sounds good on paper, I doubt that this would ever get implemented in the real world. First, without regulation, the system would be very prone to error and potential fraud. And there are about a bazillion questions that wouold need to be answered before anyone in their right mind would participate in such a regime:

  • Who determines who is an "expert" in a particular field, and what restrictions will there be for the number of individuals that could participate from a particular industry or corporation?
  • What kind of accountability will there be for the "experts" reviewing applications (presumably, the participants will be earning their paychecks for their employers) - will there be a production quota?
  • Will the review board institute a conflict check to make sure experts from Sun Microsystems aren't subterfuging applications from Microsoft and vice versa?
  • What if an expert from a corporation determines an applicant "beat them to the punch" with regard to particular technology and now wants to sink the application - will there be criminal penalties for inequitable conduct?
  • The experts aren't infallible - what mechanism would allow applicants to appeal decisions? Will the experts participate in reissues or reexaminations?

You get the point. I think a better place for this kind of system would be a fee-for-service review board for issued patents, similar to Bounty Quest (that's right - bring back Bounty Quest!). I still think its a good idea that was perhaps a little to far ahead of its time.

No one really cares if an "obvious" patent gets issued and is never enforced. It's when the demand letters start getting mailed (and subsequent complaints in district court) that begins the headache for many businesses. And if the litigation effort is premised on a lousy patent, people should have a place to turn to slap-back an over-zealous patentee.

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