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USPTO to Use Peer to Patent Program

Zonk posted more than 8 years ago | from the just-wish-they'd-started-it-sooner dept.

124

An anonymous reader writes "DailyTech is reporting that the US Patent and Trademark Office is going to start using the Peer to Patent program. From the article:' The US Patent and Trademark Office has been getting praise for officially launching the Peer to Patent program -- the purpose of Peer to Patent is to find patents that have been issued for already made products or items that don't properly qualify for a patent. Because the USPTO usually does not have the manpower and time to thoroughly check every patent that comes into the office, many are unjustly rubber stamped.' The program will utilize a Wiki, among other tools, to get the job done."

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Two words: (3, Insightful)

Vorondil28 (864578) | more than 8 years ago | (#15292967)

'bout time.

Re:Two words: (0)

iezhy (623955) | more than 8 years ago | (#15292991)

the next good thing they could do to apply this program to allready issued invalid patents

Re:Two words: (3, Informative)

mattkinabrewmindspri (538862) | more than 8 years ago | (#15293043)

I think that's the point.
...the purpose of Peer to Patent is to find patents that have been issued for already made products or items that don't properly qualify for a patent.

Re:Two words: (3, Interesting)

Red Alastor (742410) | more than 8 years ago | (#15293027)

'bout time.
Indeed. Now they need to apply time penalties for stupid patents. Each time you troll them they wait longer before they examine your next patent and it grows exponentially.

No one would submit tons of patent applications at once and hope something (or everything pass).

And it doesn't disadvantage the small guy.

Re:Two words: (0)

Rob T Firefly (844560) | more than 8 years ago | (#15293085)

Hear, hear!

Why should this change anything at all? (3, Insightful)

babbling (952366) | more than 8 years ago | (#15293138)

What makes you think this will improve matters? Who exactly is going to go reading patents and reviewing them for the patent office?

Lawyers? No... they'd be much more interested in spending their time on similar work that they actually get paid for.
Developers/scientists/engineers? No... (AFAIK, IANAL) most legal advice suggests that you shouldn't go reading about patents in your field, and instead just read patents whenever they become relevant to you. (when you're being sued for infringement, for example)

I struggle to see how the patent office is going to get much out of this. I also struggle to see why people should contribute (without being paid) to such a broken system. Contributing in this way will not make the system any less broken. It will more likely just make it a bit easier to keep running it.

Re:Why should this change anything at all? (1)

CrayzyJ (222675) | more than 8 years ago | (#15293230)

> I also struggle to see why people should contribute (without being paid) to such a broken system.

The only people that will contribute to this system are those with a vested interest in particular patents. I can companies paying people to evaluate patents (either positively or negatively) to help the company. I can see a scenerio where say Microsoft hires a guy with 100 user ids to evaluate a patent positively and Amazon hires a guy with 100 user ids to evaluate the same patent negatively.

Re:Why should this change anything at all? (5, Insightful)

mzwaterski (802371) | more than 8 years ago | (#15293394)

Come on. Please read the article before complaining. The peer review process is merely to submit prior art. Everyone on slashdot now has the chance to submit all the prior art that they always talk about whenever a patent story is posted. The art will be reviewed by the examiner ultimately. The goal is to discover and have the examiner review the most relevant prior art. Microsoft can use its 100 user ids to submit prior art against itself...but they already have a duty to submit any art they know about...so your comment really doesn't apply.

Re:Why should this change anything at all? (2)

lenehey (920580) | more than 8 years ago | (#15294530)

The peer review system appears to do nothing more than provide a forum for discussion on published patent applications. Anyone who wants to can currently submit prior art to the Office that they think is relevant to a pending application that has been published.

Re:Why should this change anything at all? (5, Interesting)

chrispycreeme (550607) | more than 8 years ago | (#15293267)

If I understand the concept I think slashdot readers would be one group that would help with this. How many times have people posted all the "prior art" examples for these lawsuit harvest patents on /.? Open source developers that have projects threatened by junk patents etc etc. I think this is a fantastic development.
my 2 cents, not one red cent more from me.

Re:Why should this change anything at all? (1)

JerryP (309597) | more than 8 years ago | (#15293494)

Yeah, but how many /.ers - or open source / free software developers, for that matter - can read and understand patent applications? I know that I'm not fluent in Legalese, and I don't think that is because English is not my native language.

Re:Why should this change anything at all? (3, Insightful)

'nother poster (700681) | more than 8 years ago | (#15294312)

Well, I bet some of the Slashdot crowd can read legalese as well as the patent exameners, and really that doesn't matter. You read the patent. You think it means X, but it really means Y. You send information pertaining to prior art for X. Patent examener reviews your prior art, decides it isn't relevant to X, and is disqualified. Ta da. Basiclly this process is being tested so that examaners review prior art, not search for it.

Re:Why should this change anything at all? (3, Insightful)

nead (258866) | more than 8 years ago | (#15293463)

What makes you think this will improve matters?

Even if only 1 bad patent is prevented from passage and/or enforcement it will be an improvement.

Who exactly is going to go reading patents and reviewing them for the patent office?

Mike over at Tech Dirt of course.

Lawyers? No... they'd be much more interested in spending their time on similar work that they actually get paid for.

sure

Developers/scientists/engineers? No... (AFAIK, IANAL) most legal advice suggests that you shouldn't go reading about patents in your field, and instead just read patents whenever they become relevant to you. (when you're being sued for infringement, for example)

Most "consumerism" advice is never read anything, just bumble along in your daily life until you die. Some people read encyclopedia's for fun, some people read the law for fun, some people actually like to read patents. There certainly aren't millions of these people, but they are out there.

Contributing in this way will not make the system any less broken. It will more likely just make it a bit easier to keep running it.

Nobody said this was a silver bullet and you just pointed out a possible improvement in one matter as it were.

Re:Why should this change anything at all? (0)

Anonymous Coward | more than 8 years ago | (#15293480)

It will be in the self interest of individuals to read articles relating to thier research. If I owned a company doing R&D in an area, I would have my engineers periodically monitor the applications and submit prior art. Doing so would reduce the chance of crap patents being issued in my backyard.

Re:Why should this change anything at all? (1)

babbling (952366) | more than 8 years ago | (#15293563)

Even though, instead of looking for prior art, your engineers could also be coming up with other trivial patents that could be used as deterrents to prevent your company from being sued incase one patent does slip by...?

Re:Why should this change anything at all? (0)

Anonymous Coward | more than 8 years ago | (#15293554)

most legal advice suggests that you shouldn't go reading about patents in your field

True, which kinda kills the whole idea that patents provide for better dissemination of ideas than trade secrets, don't it...since that's the traditional argument for using patents in the first place, maybe we should just quit pretending and rely on trade secrets for protecting inventions.

Re:Why should this change anything at all? (0)

Anonymous Coward | more than 8 years ago | (#15294724)

True, which kinda kills the whole idea that patents provide for better dissemination of ideas than trade secrets, don't it...since that's the traditional argument for using patents in the first place, maybe we should just quit pretending and rely on trade secrets for protecting inventions.
Also, patents are a mess when somebody "Invents" something and attempts to pattent it when already exists, but the previous inventor chose a trade secret rather than a patent. The first inventor must block the patent. The patent applications existance kills off the trade secret anyway. But what happens when the first inventor did not notice the patent. Then they are screwed, as obviously they would have no "prior art" to invalidate the patent, as the idea was a secret at that time.

Re:Why should this change anything at all? (4, Insightful)

just_another_sean (919159) | more than 8 years ago | (#15293568)

As you say most people become concerned about patents when it affects them. But with all the litigation going on these days, especially in the tech industry, I think the number of people affected, and therefore possibly willing to contribute to this, is quite large. And it's not just company X getting sued that affects people. Sure company X is going to go all out to use this tool to their advantage and even contribute some knowledge back to it. Things really snowball though when a) affected end users become concerned, b) affected side markets become concerned (e.g. makers of Blackberry cases and accessories) and c) developers of software/services around a disputed technology become concerned. As a peer post pointed out the number of people on /. (and I would add Groklaw) alone who are willing to debunk bogus patents is a formidable force.

Although it's becoming cliché and tired at this point there is some truth to the "many eyeballs" line of reasoning. And debunking patent applications scratches the same type of itch in some people that hunting for security vulnerabilities and bugs does. Security researchers come in many forms so I won't generalize too much but a number of them do it for the sheer satisfaction of finding and reporting a vulnerability and the "cool factor" that comes with it. IMHO a lot of pro researchers and laymen alike would love a chance to participate in a system like this for patents.

Re:Why should this change anything at all? (0)

Anonymous Coward | more than 8 years ago | (#15293731)

This is more akin to a cry for help then anything else. Early in the article itself there is mentioned the short pay and monumental workload of patent examiners. If recent internet fads like Myspace, YouTube and the Wikipedia have tought us nothing else it's that people want to be involved in some kind of public knowledge repository. There's no denying that vandalism and overtly biased information will make it into this thing, but do we really need more patents on mousetraps?

I feel that such a system will unclutter the process for the examiners them selves by providing the relative information they will need to make good judgements on the validity of a patent claim. It's not like they are proposing Hotornot.com for patents.

Re:Why should this change anything at all? (1)

sankyuu (847178) | more than 8 years ago | (#15294901)

What makes you think this will improve matters? Who exactly is going to go reading patents and reviewing them for the patent office?

A question of motivation, huh? The answer is, anyone who wants to. If people can voluntarily create free software without any apparent motivation, then there will be people who want to invalidate patent applications just because they feel they should. It's the "more eyes" option being applied to patents.

Developers/scientists/engineers? No...

In my previous job, I was trained to read patents and to make sure products were non-infringing after the development cycle (and then to find workarounds afterwards). So yes, some developers can and do read patents to prevent being sued.

most legal advice suggests that you shouldn't go reading about patents in your field, and instead just read patents whenever they become relevant to you

That depends on your habits as a developer. If you've started a project, and then somewhere along you feel you want to check the patent minefield, you can go on ahead. At least this time, if someone came up with an idiotic patent application, you can vent your frustration and hopefully point out some prior art on the forum.

I struggle to see how the patent office is going to get much out of this.

That will depend on how they will be able to process input from the forums. They will have to come up with some system to filter out the spam and trolls, etc. And the examiners' jobs will have to be redefined to include reading the forum posts, which is the tough part i think.

Re:Two words: (1)

dsginter (104154) | more than 8 years ago | (#15293359)

'bout time.

Funny, those weren't the words when I suggested it [slashdot.org] .

Re:Two words: (0)

Anonymous Coward | more than 8 years ago | (#15294585)

I can picture it now USPTO employee, sitting at his computer browsing the USPTO Wiki. He is looking for prior art for a fresh patent handed to him entitled

"Network based forum for the spread of ideas, user editable and modifiable."

Infant Stage (5, Informative)

eldavojohn (898314) | more than 8 years ago | (#15292972)

I think that the Wiki is really in its infant stage as there's not much on it. A lot of times, don't they take a huge body of documents and then write an ingestor application to seed a serious Wiki?

The most interesting thing on the site is the research style paper [jot.com] entitled "Peer to Patent": Collective Intelligence and Intellectual Property Reform by Beth Simone Noveck. There's an insane amount of footnotes on the first opening pages and it is a PDF so I will repost the abstract:
The patent system is broken. The Constitution intended for patents to foster innovation and the promotion of progress in the useful arts. Instead, the Patent Office creates uncertainty and monopoly. Underpaid and overwhelmed examiners struggle under the burden of 350,000 applications per year and a mounting backlog of 600,000. Increasingly patents are approved for unmerited inventions. What if we could make it easier to ensure that only the most worthwhile inventions got twenty years of monopoly rights? What if we could offer a way to protect the inventor's investment while still safeguarding the marketplace of ideas from bad inventions? What if we could make informed decisions about scientifically complex problems before the fact, rather than trying to reform the system ex post? What if we could harness collective intelligence to replace bureaucracy?

This Article argues that we should reform the patent system by re-designing the institution of patent examination. Our existing legal mechanisms for awarding the patent monopoly are constructed around the outdated assumption that only expert bureaucrats can produce dispassionate decisions in the public interest. Building upon what we have learned from online and off-line systems of collaboration, we can now use the tools available to combine the wisdom of expert scientific communities of practice with the legal determinations of a trained Patent Office staff.

This Article proposes the creation of a peer review online system to help the Patent Examiner find the right prior art and access those experts who can advise on how to apply it. This new mechanism for collaborative expertise provides an avenue for reform that requires minimal statutory change while improving the quality of patents. We have arrived at a unique moment in history when four factors converge to make this reform possible: first, the state of patenting has become so problematic as to meet with almost universal opprobrium; second, patent applications are published after eighteen months independent of grant, making it possible to consider open peer review; third, we now have the technology to make peer review on this scale possible; and fourth, we have experience both with offline peer review and with online systems for collaborative decision making that provide the empirical understanding of how to re-construct our intellectual property institutions. This Article not only argues for such an institutional re-design, it provides a blueprint for the pilot that the United States Patent Office has agreed to implement. This proposal has implications beyond the patent process. It may enable us to contribute to the design of other social systems that depend upon the collaboration of experts across a distance, providing ways to improve policymaking, deepen democracy and rethink our fundamental assumptions about governance.
As you can see, it's a pretty far-reaching and very hopeful aim at fixing something that the vast majority of our community, Slashdot, view as a broken system.

So there you have it. Something is broken, here's the proposed solution now let's see if it works. The only possible show stopper I see here is that I'm not so sure it would benefit anyone to join this proposed community of "patent clerks." They are hoping for an army of people to read over patents and notice similarities or infringements for proposed patents. The Wiki's answer to my concern is lacking:
Finally, for the peer reviewer and for the public, the incentive to participate is to produce better patent quality in a given arena of scientific invention. Peer review and scrutiny by a jury of one's inventive and intellectual peers should promote innovation, which benefits all. With appropriate structures and the successful integration of such peer review institutions into existing communities of practice, participation in Community Patent Review would confer status and reward on the peer reviewer.
There doesn't seem to be much incentive for the reviewer though I said the same thing about Wikipedia and been proven wrong. In my opinion, patent law is one of the dirtiest of trades and I don't have much desire to become involved in it at all.

It shall indeed be interesting to see how this turns out ...

Re:Infant Stage (3, Insightful)

Rob T Firefly (844560) | more than 8 years ago | (#15293115)

I think that the Wiki is really in its infant stage as there's not much on it. A lot of times, don't they take a huge body of documents and then write an ingestor application to seed a serious Wiki?

It officially opens on May 12. They still have a few days to load it up beforehand.

There doesn't seem to be much incentive for the reviewer though I said the same thing about Wikipedia and been proven wrong. In my opinion, patent law is one of the dirtiest of trades and I don't have much desire to become involved in it at all.

That's exactly why many people will want to help out with this. Slashdot alone has enough people disgusted enough with the patent system to clean things up substantially and help fix it. People can always complain about things, but it's when they're willing to do something about it that things get done.

Re:Infant Stage (2, Interesting)

pointyhairedmba (698579) | more than 8 years ago | (#15293142)

The same argument could haved been made a while back as to why people would never contribute their time, for free, to an open source software product. People who have a vested or passing interest in collectively making a more open sysem will donate their time in the same way they do for open source software projects.

The incentive is that consumers will be able to more fully hold companies accountable for their actions resulting in fewer patent lawsuits, unfair competitive advantages, etc. This will all result in lower prices for products and a wider variety of products to choose from.

I'm on the verge of tears (4, Insightful)

Mateo_LeFou (859634) | more than 8 years ago | (#15293156)

It is astonishing to me that USPTO might be getting a bit of a clue after decades of sucking. They deserve our applause and our help; remember, we're the ones who have been so pissed at them for screwing up the software industry. They look sincere, so bury the hatchet and edit that wiki!

Re:Infant Stage (2, Interesting)

Znork (31774) | more than 8 years ago | (#15293248)

"I'm not so sure it would benefit anyone to join this proposed community"

In fact, chances are you'd be punished for joining as it'd leave you exposed to willful infringement claims.

The patent systems problems cant be solved within the current framework; the system itself isnt founded on a self-balancing financial structure, making it impossible to analyze, optimize and budget for.

Re:Infant Stage (1)

WhiplashII (542766) | more than 8 years ago | (#15293423)

No - that is why this is the perfect method. It can be anonymous! So you can look around and make sure any patents are new without making your standing in a lawsuit tenuous.

Good all around.

I hope (2, Funny)

just_another_sean (919159) | more than 8 years ago | (#15292977)

I do hope that someone has patented this wonderful new technology!

(sorry, couldn't resist).

It would be interesting though (1)

phorm (591458) | more than 8 years ago | (#15293401)

What if, in the efforts to stop a flood of bad patents, the USPTO runs astray of a patent themselves (likely on something commonly used). As the USPTO I suppose the could revoke the patent in question?

Re:I hope (1)

Dausha (546002) | more than 8 years ago | (#15293498)

"I do hope that someone has patented this wonderful new technology!"

I know you're being cheeky, but the U.S. Government does not have to honor (at least U.S.) patents. That sort of goes with being the sovereign who gives out the patent rights.

Why don't they use Slashdot? (3, Funny)

Billosaur (927319) | more than 8 years ago | (#15292979)

Competition will drive more information into the process. So long as people make valid arguments as rated by their peers, their personal agenda is irrelevant. Having many participants in the process dilutes the effect of any bad apples or unconstructive participants. Within any social reputation system, norms evolve to safeguard the quality of participation and we can expect something similar here.

Sounds like we already have that here on Slashdot; let us review patent applications. I am sure we can fair and unbiased, especially when it comes to software patents.

Re:Why don't they use Slashdot? (2, Funny)

Anonymous Coward | more than 8 years ago | (#15292996)

Absolutely. 99% of software patents would be rejected; the rest would be awarded to Apple. I don't see anything wrong with that!

Re:Why don't they use Slashdot? (2, Funny)

Anonymous Coward | more than 8 years ago | (#15293182)

Hey! What about us!

Love,
Google

Re:Why don't they use Slashdot? (1)

just_another_sean (919159) | more than 8 years ago | (#15292999)

I am sure we can fair and unbiased, especially when it comes to software patents.

I know your not new here, so I'l skip that joke. You sound so serious so I don't smell a joke on your side. Ah yes, it must be sarcasm! That's the only reason I can think of that the words "slashdot", "unbiased" and "patent" could end up in the same sentance.

April Fools? (4, Insightful)

Buzz_Litebeer (539463) | more than 8 years ago | (#15292984)

I had to check the document date to make sure this wasnt a joke. How do we expect that the patent office will be able to take these peer patent reviews seriously? How will this stand up in a court of law?

Seems a bit shaky.

Re:April Fools? (4, Insightful)

grasshoppa (657393) | more than 8 years ago | (#15293105)

Doesn't matter where the data comes from, as long as it's verifiable, it's still valid data.

Gift horse (1)

Mateo_LeFou (859634) | more than 8 years ago | (#15293188)

Take it easy. It's a startup. Let the experiment run for a bit.

Re:April Fools? (1)

asuffield (111848) | more than 8 years ago | (#15293603)

How do we expect that the patent office will be able to take these peer patent reviews seriously?

That's their own problem to deal with. It can't be any harder than the question of how they take these patent applications seriously.

How will this stand up in a court of law?

Not at all, by design. The peer review system allows the public to research and submit data. The patent examiner will then research what the public come up with, validate it, and reject the patent. This solves the problem of the patent examiner not having sufficient time (about one working day per patent, spread over a few weeks, is what they get) to search all available records for relevant information and discover that the patent is neither original nor inventive. They are effectively broadcasting a message saying "anybody know about this?" and using the replies as starting points. It is assumed that if you ask a large enough group of people, at least one of them will know something about it - like "I implemented one of those in 1972", which is all the patent examiner needs to compose a rejection for this application.

Patent pending? (0, Redundant)

john83 (923470) | more than 8 years ago | (#15292985)

Is the program itself patented? :)

Re:Patent pending? (1)

metsu (601943) | more than 8 years ago | (#15293049)

[Peer Review] Patents?
[ ] %patent% on the internet.
[ ] %patent% on a wireless network.
[ ] %patent% on a donkey.
[ ] %patent% on a wiki.

maybe they're safe.

Re:Patent pending? (1)

babbling (952366) | more than 8 years ago | (#15293169)

It probably does violate some obscure software patent, you know... I'd like to see the USPTO get sued for patent infringement over this.

Slashdot falls silent... (5, Funny)

enjahova (812395) | more than 8 years ago | (#15292986)

...as thousands of nerds choke on their breakfast upon realizing that the USPTO finally read their comments on Slashdot.

Re:Slashdot falls silent... (1)

GigsVT (208848) | more than 8 years ago | (#15293114)

Heh. We've had USPTO patent workers post here before. It's no secret that some of the people in the patent office read Slashdot.

Re:Slashdot falls silent... (2, Funny)

collectivescott (885118) | more than 8 years ago | (#15293246)

Its true, this news has altered the slashdot paradigm. For instance, I saw the word patent in the title of the story, and I was ready to launch into a lengthy criticism of the patent office. However, when I realized that it was about patent reform, I didn't know what to do. So now I can only write that I am confused.

Next on slashdot: Microsoft announces it is releasing source code for independent security audits!

Re:Slashdot falls silent... (1)

tepples (727027) | more than 8 years ago | (#15293734)

Next on slashdot: Microsoft announces it is releasing source code for independent security audits!

Umm... old news [microsoft.com] ? I assume this would fall under the "MVP" option if a security audit counts as a "support service".

Moderating patents? (2, Funny)

agent dero (680753) | more than 8 years ago | (#15293059)

If they use a moderation system similar to slashdot's, there's no way it can fail!

Finally, a fair, completely unbiased way to moderate things...just like on Wikipedia ;)

Rewards? (1)

plumby (179557) | more than 8 years ago | (#15293068)

Couldn't spot any reference to payment for reviewers on the site. What would be good to see (if it doesn't already exist) is a fine for anyone submitting a dodgy patent, which could go towards a reward for the reviewer(s) that spot the problems with it.

Re:Rewards? (1)

Twanfox (185252) | more than 8 years ago | (#15293128)

Why would a reviewer need a monitary reward? Think about it this way, if you as a person in a given field, could comment on applications or products your competitors were working on and point out the flaws of 'Hey, everyone's been doing this for years,' wouldn't that be your payoff, as a reviewer? The protection from having someone submit and get approved a commonplace process as novel and then sue the pants off you? Sure seems like a win for me.

Re:Rewards? (1)

MasterC (70492) | more than 8 years ago | (#15293145)

What would be good to see (if it doesn't already exist) is a fine for anyone submitting a dodgy patent

My beef with that is it penalizes and discourages an honest patent (you call it a "fine") by lumping it with a patent intentionally filed that duplicates another patent. The alternative is to sift through all the patents in existance yourself. Or pay someone money to do it for you.

Why shouldn't the filing fee of a patent include checking to determine uniqueness? I would expect the USPTO to not issue a patent to someone else for something I've done, so I would expect the USPTO to issue me a patent for something someone else has already done?

Re:Rewards? (1)

slew (2918) | more than 8 years ago | (#15293409)

Why shouldn't the filing fee of a patent include checking to determine uniqueness?

Of course the filing fee is supposed to help fund the patent examiner to research the uniqueness of your patent... However, not only is it totally insufficient to fund this activity in the best of situations (the fee is deliberatly set low as to not discriminate against small individual inventors), but remember you are also feeding a highly efficient streamlined government agency with that fee... :^)

Re:Rewards? (0)

Anonymous Coward | more than 8 years ago | (#15293363)

1. Submit a flawed patent
2. Tell 100 friends about the flaw
3. ****
4. Profit???

Re:Rewards? (0)

Anonymous Coward | more than 8 years ago | (#15293461)

Perhaps, as a reward for reviewing patents, they could waive some of your patent fees. Say you review 2 new patents and rate them on their plausibility. Then you'd no fees for your next patent. Private inventors would perhaps do that to save 20 dollars in application fees. Also, the more people who take advantage of it, the less work the patent office has to do. There's still going to be people who'd rather just spend the money and not hassle with reviews and they'd supply the patent office income. Large companies would of course want to review their competitor's patents for duplications etc.

Re:Rewards? (1)

swanriversean (928620) | more than 8 years ago | (#15293497)

I think patent applicants already have to cover costs, even if they aren't successful. And while I don't think it is fair to force patent holders who lose their patents through this process to pay a fee, after all it is not their fault the the orginal clerk didn't do a good enough job, I think it would be important for there to be some sort of bounty paid out for tips leading to the revocation of patent rights.

That might make debunking bunk patents a viable career, and would help ensure this program actually gets used.

It might be that some large companies, whether there is a bounty paid out or not, would employ a few people as debunkers.

<naive type="hope>
Just by making the whole system more accessable (and transparent) might make the system a whole lot fairer, at least in the long run.
</naive>

A step in the right direction. (5, Interesting)

MartinG (52587) | more than 8 years ago | (#15293072)

This will no doubt help matters, but still the burden of this work is being put on the wrong people. It should be on those who want the patent in the first place.

If an existing patent grant is subsequently overturned for reasons that the applicant could reasonably discovered themselves then they should be penalised. It should be expected that the applicant has searched exhaustively (or at least as much as can be reasonably expected) before applying in the first place. Why should anyone else have to bear that burden?

Re:A step in the right direction. (1)

kansas1051 (720008) | more than 8 years ago | (#15293191)

The problem with your idea is that it is impossible in court to determine if an applicant could have "reasonably discovered" prior art. There are 7 million issued patents and a few million published applications in the US alone, and probably around 50 million patent documents worldwide, in addition to 500 million journal, newspaper, and magazine articles.

How many of these 1 billion references do I have to look at to satisfy your test? If I look at 1,000 "relevant" references (resulting from a google or key word search, etc) and what I invented was shown in the 1,001th reference, have I committed fraud?

Of course, the real problem with your idea is that small companies and solo inventors would not have the money to search thousands of references before filing an application, so they wouldn't seek patents. The only people who would file patent applications would be large companies (IBM, MS, etc), who would then use their patents to prevent small companies from competing (which they do anyway, but at least the small companies can fight back with their own patents under the current system).

Re:A step in the right direction. (3, Insightful)

RingDev (879105) | more than 8 years ago | (#15293207)

"This will no doubt help matters, but still the burden of this work is being put on the wrong people. It should be on those who want the patent in the first place."

But then there is a problem with motivation and bias. Maker of XYZ patent is of course going to say his patent is different than or a vast improvement over patent YXZ, even if the two are virtually identical. The patent submitter has a monetary stake at getting their patent approved, so of course they will do sufficient "research" to "prove" that their patent is unique and appropriate.

Thus the need for independent reviewers. Which is what frightens me somewhat about opening the process to peers. If MS submits a patent request for a new form of technology, Apple, Sun, IBM and who ever else wants to can flood the review panel with peers with a bias. Preventing MS from acquiring a patent (even a valid one) can prove to be financially beneficial to MS's competitors.

I think this system will help the process, but there still needs to be significant over-site to ensure that people are not buying the ability to block competitors' patents.

-Rick

Sorry for negative mod - was mistake (0)

Anonymous Coward | more than 8 years ago | (#15293901)

I meant to mod "Insightful", but I was careless. And no way to undo or mod again AFAICT. So I gave you a +1 for your (genuinely informative) ethanol post instead. So sorry dude.

Re:Sorry for negative mod - was mistake (1)

RingDev (879105) | more than 8 years ago | (#15294099)

I thought that if you post a non-anon post anyplace in the discution your mods are cleared from that topic. Not sure on that though.

-Rick

Re:A step in the right direction. (1)

mOdQuArK! (87332) | more than 8 years ago | (#15294436)

I always thought there were two things required to make the patent system bearable:

#1 Severely limit the total number of valid patents - maybe 10,000 or so, although
      I'm sure there could be kind of criteria to decide what total # would be "best".

This makes the patent database practically searchable, and allows product-makers to have a decent chance of knowing whether or who's patent they might be violating.

This also sets up the scenario for #2:

#2 Set up some kind of "idea" competition so that people who are trying to get a patent
      granted need to have the ideas presented in their patent application compared against
      all of the other patent applications for "value".

My favorite process for this so far will probably make economics professors happy:
hold an auction for each "open" patent slot which becames available (either
because the previous patent holding that slot reached expiration, or was knocked
out in the courts due to prior art and/or obviousness).

Anybody can submit "ideas" for patenthood into the auction, and anybody can bid to
try and secure the patent rights for each particular idea.

Part of the reason I like this idea is that each bidder has to perform "due diligence"
on the idea that they are bidding for (i.e., doesn't require much USPTO involvement,
since if that idea ends up getting knocked down in the courts due to prior art or
obviousness, or there are so many variations of the idea that it can be easily
worked around, then it wouldn't be worth the money that they'd end up spending on it.

Since a normal auction favors rich people/organizations, I prefer adding a following
twist: the money paid by the winning bidder goes to the person who submitted the idea
to the auction.

This works out for both small inventors & society, since small but clever inventors
could receive jackpot windfall returns depending on how valuable their submitted
idea was, and the entities who win those auctions are much more likely to have the
resources to widely distribute the benefits of those ideas to society.

The main things that I haven't worked out a good answer for:

You need to make sure that someone who bids for their own submitted patent idea
doesn't "pay themself" if they win, since in that case anyone could bid
outrageously. In order to make the auction assign proper "values" to the ideas,
you need to make sure that the winning bidders cough up real money.

I'm sure the government would be happy to take that money off everyone's hands,
but I'd really prefer a closed feedback system that encourages "good" societal
results. If anyone has any ideas, I'd love to hear them.

Re:A step in the right direction. (1)

babbling (952366) | more than 8 years ago | (#15293208)

It's a broken system. There is a large amount of work to be done for each patent to be processed properly, so on the one hand it makes sense that the person who wants the patent should do that work. On the other hand, though, if you let the applicant have a say in the process of approving/denying the patent, they will surely choose to approve it. How do you make them prove that they have properly checked their patent application against all existing patents, and prior art from the past?

Bond -- bounty (0)

Anonymous Coward | more than 8 years ago | (#15293459)

You could have the inventor post a bond, say $100 per claim. Any 3rd party that submits prior art that shows the claim to be overly broad could recieve the $100 as a bounty. If the inventor wishes to rewrite the claim and resubmit (currently allowed with patents), it would be an additional $100 per claim.

This helps in 2 ways: by making it per claim, inventors will think carefully before submitting a long list of claims. And it directly rewards 3rd parties, very likely some Indian or Chinese guy using the system to make a few extra bucks.

Note: There are probably a number of variations, such as $1000 per independent claim, $20 per dependent. Stuff like that. The Indepented:Dependent ration is about 1:10 and it's the independents that matter anyway.

"underpaid and overwhelmed" (1)

hey (83763) | more than 8 years ago | (#15293091)

Also since the patent workers are "underpaid and overwhelmed" they could hire more and pay them more. Then they'd get better results.

Also they should team up with the EU. There's no need to have two patent offices both looking at the same things.

Re:"underpaid and overwhelmed" (4, Interesting)

DerGeist (956018) | more than 8 years ago | (#15293197)

This is so true. The USPTO often recruits near where I live and work. In college, they had a booth at the college career fair and were the only people with NO line whatsoever. They literally had to walk around and ask people to come talk to them. It was pretty sad.

It wasn't hard to figure out why, they were offering salaries nearly $15k lower than the competition. A CS/EE Master's degree and a 3.9-4.0 GPA would earn you something like $56k. In the DC area that's roughly $35k if you live somewhere with an average cost-of-living. Needless to say, most weren't too interested in the USPTO.

To make matters worse, the job is awful. You are given x number of patents a week, period. Whether or not you finish them you're still getting them piled on you. It's just one after the other, like sorting mail your whole life. They tried to make it sound exciting, but it just wasn't.

I spoke with some people who worked at the USPTO. They hated their lives. Their technical skills went completely to waste and they quickly learned you either become a patent lawyer or you flounder and die.

This grim picture is all the USPTO has to offer to incoming recruits, and no wonder they are understaffed. Lousy patents making it through the system makes sense when you're reduced to hiring the desperate and underqualified. That's why I'm excited about this program. It allows others to help make decisions and provide insight rather than placing the entire burden on an underpaid, understaffed government office. A much needed change.

Re:"underpaid and overwhelmed" (2, Interesting)

MountainLogic (92466) | more than 8 years ago | (#15293694)

I seem to remember some German Patent clerk making good in his spare time back in 1905. Al somebody. I think he invented the internet or physics or something.

Some dead German guy. (2, Interesting)

Kadin2048 (468275) | more than 8 years ago | (#15293888)

1905 would have been about the last time Patent clerks had spare time.

And even that German guy got out of the business eventually, and found better things to do.

Re:"underpaid and overwhelmed" (1, Informative)

Anonymous Coward | more than 8 years ago | (#15293379)

Also since the patent workers are "underpaid and overwhelmed" they could hire more and pay them more.

I completely agree. The USPTO has been making record amounts of money since they introduced the "patent everything" policy. But this isn't the USPTO's call; the profits go to the treasury and get spent on other crap.

Re:"underpaid and overwhelmed" (1)

swanriversean (928620) | more than 8 years ago | (#15293560)

There would sure be a lot of people who would compain about loss of sovereignity, but it would probably* lead to a better system if there was an internation patent office, maybe run through the WTO, or completely independent.

*Good luck merging each countries patent laws ... software patents alone ... it could lead to a much worse system for those of us outside the US.

Let's keep that can of worms sealed. (1)

Kadin2048 (468275) | more than 8 years ago | (#15294005)

On the contrary, I much prefer a patchwork, redundant, basically ineffective system, similar to what we have now viewed internationally, than the sort of international entity you'd get if it was designed in the current climate. At least today if you really don't like the IP laws in the U.S., you can go to Russia, Sweden, or China; true national "harmonization," which would be the first step towards any sort of international patent/trademark/copyright office, would remove the last holdouts that haven't submitted to the Disney/Vivendi/**AA view of reality. Any new system that would be created today, would be built to their specifications, full stop: they are that powerful, and the stakes would be that high.

I have no doubt that, given the opportunity, some of the finest minds at the large corporations of the world would love to design an international Patent Office. I'm also sure that it would be ruthlessly efficient at transferring the rights of individuals to the media conglomerates, and carving the IP landscape up into chunks to be divided between its corporate masters, into monopolies that would last until the end of time.

On the whole, I much prefer our current mess: sometimes bureucratic inefficiency is perferable to the creation of a juggernaut, and I fear that's what you'd get if you concentrated power in a single place in the pursuit of efficiency.

Re:"underpaid and overwhelmed" (1)

hey (83763) | more than 8 years ago | (#15294587)

Perhaps the US and EU could informally partner... The co-owned PatentCheckAgency would just research pending patents and recommend to the US and EU patent depts.

Questionable, but (expletive deleted) (0)

Anonymous Coward | more than 8 years ago | (#15293109)

While I have doubts about how much power the reviewers will have, and more importantly, questions about how much emphasis will be placed on the solidarity of the results of the reviews; soley based on the face value, I find myself vocalising a resounding NSFW: "Fuck Yeah".

Not as good as it seems.... (1)

kansas1051 (720008) | more than 8 years ago | (#15293112)

I think the program is a great idea, but it is ***optional*** even if it loses its pilot status and becomes a permanent program. I dont think you will see many patentees rushing to sign their applications up for the program, unless the patent applications are likely to cover valuable inventions (having peer review allows the best references to be considered by the USPTO, thereby strengthening any patent that issues).

Even if the peer review program became mandatory for all applications, who in the public is going to take the time to review 1,000 patent applications a week, search for prior art, and send the relevant art to the USPTO? Patent examiners are paid to perform this task (read patent applications and search for prior art), and their work product is usually half-assed (which results in bad patents being issued).

A better solution would be to allow more effective post-grant oppositions (as in Europe) and to allow the public to submit relevant art to the patent office at any time regarding any patent application (current rules only allow the public to submit prior art regarding pending applications during certain limited periods).

Re:Not as good as it seems.... (5, Insightful)

GigsVT (208848) | more than 8 years ago | (#15293135)

who in the public is going to take the time to review 1,000 patent applications a week, search for prior art, and send the relevant art to the USPTO

Yeah, that's like expecting thousands of people to write a complete OS and all the applications for it. It'll never happen.

Re:Not as good as it seems.... (1)

kansas1051 (720008) | more than 8 years ago | (#15294365)

There are millions of people (including myself) who think coding is fun and interesting but I dont know a single person who thinks reviewing another person's patent application is fun or interesting.

Re:Not as good as it seems.... (1)

Secret Agent X23 (760764) | more than 8 years ago | (#15294393)

Even if the peer review program became mandatory for all applications, who in the public is going to take the time to review 1,000 patent applications a week, search for prior art, and send the relevant art to the USPTO?

Maybe college/university instructors (or maybe even high school teachers of advanceed classes) could assign students to do a certain amount of work for credit. There are ways it could be made relevant to most areas of study.

Re:Not as good as it seems.... (1)

falcon9x (618587) | more than 8 years ago | (#15294952)

Even if the peer review program became mandatory for all applications, who in the public is going to take the time to review 1,000 patent applications a week, search for prior art, and send the relevant art to the USPTO? Patent examiners are paid to perform this task (read patent applications and search for prior art), and their work product is usually half-assed (which results in bad patents being issued).


I think the USPTO is also relying on companies to check and see if a competitor (or some submarine patent corp) is trying to sneak a patent into the system that the company already has prior art for.

Here's an example. Maybe a company like Sony puts in a patent for say... a controller that can sense movement, it gets up on the wiki, Nintendo comes around, checks the wiki, and shows its prior art with the Wii controller (sorry, couldn't resist). Thus, Sony doesn't get the patent, and it doesn't just fall on individuals.

USPTO .... looking for developers? (1)

darkchubs (814225) | more than 8 years ago | (#15293113)

How is Ethel suposed to research that for() loop patent? I think they stamp software patents based on a drinking game...

Thank God! (1)

RecycledElectrons (695206) | more than 8 years ago | (#15293119)

My first response was: THANK FUCKING GOD!!! (that got me into a bit of trouble in the university's copmuter lab, but at least my students can't fail me.

My second response was that, like WalMart's Wikipedia page, this will be taken over by the evil masses of paid-for goons.

Andy Out!

Headline should include the word "Proposal" (3, Informative)

Anonymous Coward | more than 8 years ago | (#15293159)

I'd yell at people to RTFA, but the article gets it wrong, too. The reality isn't "USPTO to Use Peer to Patent Program" but "Some random article from a law school proposes USPTO should Use Peer to Patent Program".

This is an interesting idea, but nothing more than that; an idea.

Re:Headline should NOT include the word "Proposal" (3, Informative)

Nananine (967931) | more than 8 years ago | (#15293440)

Actually, no. This is a pilot program. From the USPTO website [uspto.gov] :

The United States Patent and Trademark Office (USPTO) will hold a briefing on May 12, 2006, from 9:00 a.m. to noon in the agency's Madison building, 600 Dulany Street, Alexandria, VA. The USPTO has created a partnership with academia and the private sector to launch an online, peer review pilot project that seeks to ensure that patent examiners will have improved access to all available prior art during the patent examination process.

As a follow-up to the February 16th meeting, this briefing will focus on further developing previously discussed initiatives as well as answering the question of what constitutes valid prior art and a greater in-depth analysis of the peer review pilot project that is under consideration.

The meeting is open to the public. However, space is limited so please register early. Only the first 220 registrations can be accepted.

The article links to the registration page, so it's a bit confusing.

Re:Headline should NOT include the word "Proposal" (0)

Anonymous Coward | more than 8 years ago | (#15293525)

Well, I'm actually going to the meeting, and from what I understand, that write-up is incorrect (or misleading). The agenda we have calls for the proposal to be presented further, and the pilot program to be looked at by the USPTO. It may end up being an actual pilot program, but at this point it is only a proposal, and the wiki just some guy with a web site.

Re:Headline should NOT include the word "Proposal" (1)

Nananine (967931) | more than 8 years ago | (#15293626)

Okay, now I'M confused. Thanks for that. I sent in a request to join the meeting so hopefully everything can be clarified.

Poor SCO (1)

cazbar (582875) | more than 8 years ago | (#15293287)

I'm wondering how long it'll be before IBM hunts down prior art for all of SCO's patents.

You know what would be cool? (1)

Godji (957148) | more than 8 years ago | (#15293303)

This is the one time I wish "utilizing a Wiki as a means for collaboration" would be patented by someone. Then that someone would sue the USPTO for infringing a patent they granted in the first place! Talk about COOL!!! :))) OK, I'm VERY aware that this didn't make any sense. Nothing to flame here, please move along.

This will work.... (1)

SquareVoid (973740) | more than 8 years ago | (#15293304)

for patents issued by Microsoft and other "evil" companies since there is plenty of haters out there to peer review those applications. The "less important companies and individuals will still get by though.

(patent + Wiki) != picky (1)

Uncle Op (541486) | more than 8 years ago | (#15293329)

The proven level of quality of Wikipedia.org suggests this is an interesting, but not inherently good, idea. Rather than "peer review", a Wiki would be better suited for a "Public Comment" area. It's a matter of setting the proper expectations: public comment is what is really happening here in the general case, and hopefully it's "informed public comment". Formal peer review tends to be picky; public comment can be icky.

It's a a neat experiment, but having only quickly skimmed some of the wiki at jot.com, I wonder if the proponents have looked carefully at the prior art, e.g.: en.wikipedia.org. And the jot.com site seems to be holding up so far.

Wrong Name (1)

bloobamator (939353) | more than 8 years ago | (#15293357)

"Peer to Patent" is a pretty lame euphemism. Sounds more like "Patent Invalidation Program" would be a better name. Or perhaps, "Finally Getting Around to Cleaning Up The FUD."

Great! Just in time for Smiley! (1)

Zemplar (764598) | more than 8 years ago | (#15293366)

Just in time for Wal-Mart's patent claim on the smiley face [slashdot.org] .
I bet the first entry will be made by Forrest Gump.

Re:Great! Just in time for Smiley! (1)

SwashbucklingCowboy (727629) | more than 8 years ago | (#15294407)

Walmart is not asking for a patent, they're asking for a trademark.

Good Start (1)

VikingDBA (446387) | more than 8 years ago | (#15293370)

Next step: Close up shop, turn off lights.

Easy to write (2, Funny)

Lobais (743851) | more than 8 years ago | (#15293437)

Python code of a perfect peer to patent program:
def filterPatents (patents):
        return []

Well, maybe we aren't that lucky, but it is always a beginning to get rid of the most stupid patents.

Ok guys, start preening. (1)

jthill (303417) | more than 8 years ago | (#15293510)

TFA:
There is no doubt that, unlike other volunteer, peer review projects in academia or on-line projects such as Slashdot, a peer review system for patents implicates large fortunes and vicious competition.

This is Good News! (1)

bepolite (972314) | more than 8 years ago | (#15293533)

From the article:
The program will officially begin on May 12.
I wonder if this will apply to pending patents or just patents submitted after May 12th? Will we see a *bad* patent application rush to avoid the peer review?

Karma (1)

wiredlogic (135348) | more than 8 years ago | (#15293595)

I hope they emply some sort of karma system to weed out the valdals submitting false reports of prior art and to elevate the opinions of individuals who consistently provide useful information.

Re:Karma (1)

robertjw (728654) | more than 8 years ago | (#15294029)

And I hope someone hasn't patented this system. They might sue the USPTO.

Where do I sign up? (1)

JKConsult (598845) | more than 8 years ago | (#15293643)

So, other people do their work for them? I realize they're understaffed and could use some help, but really, this is the best they could come up with? I have an idea: I'll outsource all of you guys to do my job. Between school and work, I'm understaffed, and this way, things get done better. I'll even implement a peer-review moderation system. It's win-win!

software patents (1)

ghostlibrary (450718) | more than 8 years ago | (#15293803)

Okay, can someone type in all of Knuth's "Art of Computer Programming" into the wiki? That'll pre-empt any further software patents.

I suppose someone could mass-load the project description for every SourceForge project that actually released a file, just to be safe.

There, no more software patents. Prior art is established.

Free help (1)

FreeBSD evangelist (873412) | more than 8 years ago | (#15293821)

So the Patent Office is basically saying they can't do their job, and they want free help.

Re:Free help (1)

kunakida (886654) | more than 8 years ago | (#15294161)

Not only that, but they can stop hiring all those pesky techies and turn the USPTO into a patent lawyer's club. No subject matter expertise necessary.

won't work, USPTO will lose $ with this program (1)

denis-The-menace (471988) | more than 8 years ago | (#15294126)

The USPTO is underfunded because the government TAKES money from the patent application fees. If this is remotely sucessful, the government will just take more money out of the USPTO.
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