Open source & patent reform

My buddy Steven M. Nipper followed up on his previous tip with a link to various recaps of the USPTO’s Feb 16’s open source meeting on the prior art database and community review patent projects. Snippets:

…The meeting then turned to the suggestion for a “Community Patent Review�? system, whereby patent applications could essentially be “peer reviewed�? by the public before being granted. The first speaker on this topic was Mr. Marc Ehrlich, an attorney with the Patent Portfolio Management/Intellectual Property Licensing department at IBM. Mr Ehrlich had a number of slides showing how such an online system might actually look in practice. His proposed system consisted of three basic parts:

  • Access – Make it easier to access applications. Add a subscription-based alert system to notify potential reviewers when a new application in their area of expertise becomes available.
  • Review – The basic platform for public review. Components include education, indexing, links, discussion, and some sort of reputation scoring system so that examiners would have some idea of the track record of folks doing the public review (similar to E-Bay’s scoring system).
  • Feedback – Find a simpler way to submit data to examiners.

Mr. Ehrlich determined that the system must also support easy ways to identify the responder (the one submitting the data to the examiner), make structured comments (in addition to just indicating any prior art found) and a way to determine if the examiner in a given case actually used the data that was provided. He then identified some of the potential challenges facing the implementation of this kind of system, the main ones being:

  • Flooding – the danger of the USPTO being overwhelmed by submissions from the public
  • Gaming – bad actors using the system to intentionally obstruct otherwise valid applications
  • Willful infringement dangers – overcoming the reluctance many developers feel about looking at any patent data whatever for fear of becoming liable to later charges of “wilful infringment�? against a patent (more on this topic later)

At this point, one of this meeting attendees, an actual patent examiner, made the admission that he sometimes did use Slashdot in trying to locate prior art, but that it was difficult and time-consuming due to “all the anti-patent noise�?.

· · ·

Professor Noveck brought up what was perhaps one of the most important reminders of the entire meeting, that being that the constitutional goal of the patent system was ultimately to spread information, not restrict it’s dissemination, and that any system must put those priorities first.

· · ·

Steve Stites writes:

Professor Beth Noveck of NY Law School made the exceptional proposal. She outlined a set of reforms based on the way that Open Source works. She proposed that the Patent Office publicize proposed patents (which they do now to a certain extent) and that the public and the Patent Office engage in a peer review process. The peer review process that she proposed is very similar to the way that academics and Open Source handle new ideas. There is a public discussion of the new idea with a person’s contribution to the discussion being weighted somewhat by the Open Source equivalent of academic prestige. From this discussion the Patent Office would gain valuable insight into prior art, triviality, overly broad patents, etc. which are of great importance is deciding whether or not to grant patents. From an Open Source viewpoint all the Patent Office would have to do is publish pending patent proposals on Slashdot and participate in the fireworks.

From the viewpoint of the Patent Office the problem with Beth’s proposal is that it is completely illegal. It was a Patent Office examiner sitting in the audience who brought up Slashdot:

“The next comment was from a patent examiner in the audience (of which there were quite a few). He said that he thought Slashdot was already a very valuable site for examiners to find prior art when reviewing applications. He thought the moderation system of Slashdot should be considered as a useful model to build on.”

This same patent examiner continued by emphasizing that he could not legally participate in the Slashdot discussions that happened to be of use to him.

Another Patent Office problem with Beth’s idea is the lack of beaurocratic structure in the peer review process. Beth addressed this problem by injecting prestige in the process to give the people participating in the peer review what seems to be beaurocratic rank.

· · ·

Finally, (there’s a lot of good stuff in there, so if you get a chance, definitely skim it over), I came across an actual project that sounds similar to my own Community Marks concept called Community Patents… the big difference being that Community Patents go in the complete opposite direction of my proposal for community ownership. Anyway, here’s their speil:

The patent system needs our help. The United States Patent Office is actively seeking ways to bring greater expertise to bear on the review of patent applications and ensure that only worthwhile inventions receive the patent monopoly. Currently, underpaid and overwhelmed examiners struggle under the backlog of applications. Under pressure to expedite review, patents for unmerited inventions are approved.

Sponsored by IBM, the Community Patent Project seeks to create a peer review system for patents that exploits network technology to enable innovation experts to inform the patent examination procedure. In every field of scientific endeavor, peer review is a critical quality control mechanism to improve innovation. Throughout the public sector both peer review and citizen consultation are either legally mandated or practiced as a way to inform policymaking.

The Community Patent Project aims to design and pilot an online system for peer review of patents. The Community Patent system will support a network of experts to advise the Patent Office on prior art as well as to assist with patentability determinations. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the “wisdom of the crowd�? – or, more accurately the wisdom of the experts – to complex social and scientific problems. This could make it easier to protect the inventor’s investment while safeguarding the marketplace of ideas.

So there you go. As the seven millionth patent was recently granted, it’s clear that our intellectual property system needs an overhaul — not to make it more repressive or draconian, but to enforce fair limitations on the retention of IP (if retention is really a good idea at all) while also continuing to enable inventors the chance to benefit from their work (abolishing software patents is a long way off, so we’ve got to find compromises in the meantime that are not economically devastating for the individual — if individuals can even afford patents anymore).

If the original patent system was created to promote “industrial and technological progress in the United States and strengthen the national economy”, there is indeed much work that needs to be done to reform the notion and value placed on ““. As Friedman has pointed out, as the world flattens, the competitive advantage will be in the speed of innovation and in the validity and inclusivity of ideas advanced. Open source is a means to that end, but if any civilization is encumbered or held back by its legal institutions, it won’t matter how much brawn ya got, the next generation will be determined by the speed with which civilizations are able to enact their ideas, not how well they’re able to protect them. So um, at least in the US, you might expect the end to an era in the next 10-15 years. Mebbe. Heh.

Author: Chris Messina

Head of West Coast Business Development at Republic. Ever-curious product designer and technologist. Hashtag inventor. Previously: (YC W18), Uber, Google.

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