Back in in June, the USPTO started a pilot project called “Peer-to-Patent” with the aims of opening up the patent review process to the public. By doing this, it hopes to leverage the help of the community in speeding up the patent process by having teams of volunteers looking for prior art that can determine the relevancy of the patent application. The IEEE Spectrum had a good article/interview with the founder of Peer-to-Patent; it’s a short read (2 pages), and I suggest you read it since it does a good job at explaining the goals and the means with which the project aims to accomplish them.

There is apparently a huge backlog in patent applications, so the needs for a project like this are obvious. However, will the “wisdom of the masses” prevail in helping to resolve the numerous problems in the patent system, evidenced by the seemingly endless litigation related to it?

Software only, for now

First of all, the USPTO is not opening the review process for all types of patents. Since Peer-to-Patent is a pilot project, for now, it’s only covering software patent applications. Additionally, inventors are not forced to submit their patent to this open process - it is a voluntary choice. However, if you choose to opt-in to this process, your application will skip the four-year backlog of applications submitted using the “regular process”, and will be reviewed in a much more timely manner - this is the incentive for the program, at least on the inventor’s side. So far, companies like GE, HP and IBM have opted to participate in the project this way.

Community involvement

Community is a two-step process, and anyone can choose to be involved in the review process. Your job, should you choose to accept it, will be to scour for “prior art” - publications or work that relates to the claims of the patent application, and that would help decide on its relevancy. You then post/upload your findings to the Peer-to-Patent website. 10 to 25 new patent applications are expected to be posted to the website every month, providing plenty of material for volunteers to search on.

The second part of the process involves deciding the 10 best pieces of prior art for each patent application. After a set amount of time, new submissions of prior art are closed off, and the community must then vote on which pieces of prior art they think are best. Each user/reviewer would get one vote, and the top 10 choices are then forwarded, along with the patent, to the USPTO for the final decision as to whether the patent is awarded or not.

So, the entire process isn’t decided online, but rather, this pilot project takes care of the first step of a patent application. The founder of Peer-to-Patent, Professor Beth Simone Noveck, describes it best:

If you think about the fact that a patent examiner now has between 18 and 20 hours for the total review of a patent application, 18 to 20 hours to decide whether that Blackberry patent application gets granted or whether the peanut butter and jelly application deserves a 20-year grant of monopoly rights, 18 to 20 hours is not a lot of time to complete all the research and do the review.

The process has the added benefit that an entire community is likely to have at least a few volunteers that have some special knowledge or experience related to the specific patent that a single reviewer would not have. This would allow them to find and explain prior art and its relevancy in a better way. After all, the field of even software patents is very broad, and must encompass an enormous amount of information.

The solution?

Peer-to-Patent has the potential to succeed, and hopefully with its success, will usher in a reform, at least in the area of hi-tech. There have been too many frivolous patents accompanied by frivolous lawsuits. In addition to impeding technological progress and development (the opposite aims of patent law), these lawsuits tie up courts and waste resources. With this project, prior art should hopefully be found before these bad patents are granted.

With the community only being involved in the first step of finding prior art, the USPTO still having the final say, I think a nice balance has been struck. This way, you still have some level of control and the USPTO can still use its own judgment. It’s not greatly different than Wikipedia, where some users have more control than others. And, let’s face it: There was no way the USPTO was going to completely relinquish control - that’s just too big of a step.

However, I can see some problems developing. First of all, anytime you have an online voting system, there is always the question of fraud. Since every user/member of the site has one vote in deciding which pieces of prior art they think are best for an application, how do prevent people from establishing multiple accounts and “gaming” the system? One way would be to request a credit card number, just for verification, but I believe this would be a huge impediment to participation. This is a serious issue, with sites like Digg constantly combating “gaming” of their system and other attempts at fraud. If Digg suffers from organized attempts at fraud from marketing services, you can almost be certain something like Peer-to-Patent will suffer from something similar.

In a worst-case scenario, I could see the litigious patent arguments in court merely being relocated to the online-forum of Peer-to-Patent. While this may be better than seeing them tie up the courts, you’ll remember that I’m not exactly agreeable with online debate. Furthermore, there are more serious concerns as well. Sneaky or unethical companies could secretly hire teams of “reviewers” to promote prior art, agreeable with their patent applications, to the top of the list, ensuring that the USPTO only sees these. This would be a clear abuse of the system, and a conflict of interest.

Optimistic

While it may seem that I’ve been pointing out the worst, I’m cautiously optimistic about Peer-to-Patent. I believe it has the potential to succeed, so as long as the creators are flexible and quick to respond to any deficiencies in the system, thus keeping it fair. And, let’s hope that they do succeed, as patent reform has been sorely needed for some time.

Read for yourself

The specific patent is available for review at US Patent website; just search for the patent number 7,069,308. The patent was filed over three years ago - virtually an eon in relative web time, since Facebook was nothing but an idea back then. However, the awarding of this patent has the potential to shake sites like Facebook, MySpace, and numerous other social networking sites.

That is, of course, if Friendster decides to actually act on the patent. That’s completely up to them - and while any court action would certainly take time, it would be hard to imagine they don’t have envy over the sucess of sites like MySpace and Facebook. Friendster has been interested in patents before, so this new one perhaps isn’t a surprise. What is a surprise, is how overly-broad the patent is - it could be interepreted to cover basically every social networking site that exists today.

Change is needed

While I’m no lawyer, I do believe that some change needs to occur in the area of patents. Like copyright law before, it’s outdated when it comes to rapidly-changing technology; applying 20th-century thinking to 21st-century concepts sometimes just doesn’t work. The original idea of patents was to protect creators and their innovations; the idea is that if innovations are so easily stolen, no one will bother to invest in it, thus hurting innovation on the whole.

In this case, the current system seems to done a huge U-turn. If Friendster decides to pursue court action, it would probably discourage people from developing new and better social networking sites. This concept doesn’t just apply to this current situation. As a commentor on TechCrunch noted, many other companies have seemingly broad patents in areas that they have done little to innovate in - besides maybe file for a patent on the concept.

I think the real problem is that these patents are being awarded or approved by people or committees that don’t fully understand the situation due to the differences in technology nowadays, and how fast things change in the computer or online world. Witness the recent settlement of the RIM patent debacle, and ask yourself if it seemed fair. Despite what you may think, NTP was fully within their legal right, despite violating the spirit of patent law.