Wired News has a story today on the Peer to Patent proposal.
“Peer to Patent” (PtoP): A Modest Proposal
Beth Simone Noveck
The patent system is broken. As patent and antitrust scholar Rudolph Peritz has demonstrated, the United States Patent Office, which was intended to foster innovation and the promotion of progress in the useful arts, instead, creates uncertainty and monopoly. Underpaid and overwhelmed examiners routinely approve petitions without review. They struggle under the burden of 350,000 patent applications per year. Though supposedly expert, patent examiners are not versed in all the scientific disciplines. Until recently, even though more and more software applications were coming in, the patent office didn’t recognize training in computer science as a legitimate qualification. The same is true now for nanotech and other state of the art sciences. Congress requires the patent office to be self-funding, creating a further incentive to approve applications and pass them through the system. As a result, multiple patents have been given for the same invention or patents awarded for inventions discovered previously. The judicial review process that is intended to check regulatory dysfunction is not necessarily helping. The Federal Circuit, the specialty patent appeals court, rules overwhelmingly in favor of patent holders and awards large financial judgments for patent enforcement, spawning a new industry of “patent trolls,” patenting for litigation not innovation.
There are numerous patent reform proposals on the table, including the Patent Reform Act of 2005, which would make it easier to contest patents after the fact or reduce the burdens and judgments of patent litigation. Other “open source patent” projects focus on foregoing patent protection altogether or encouraging inventors to donate patented technology, especially AIDS and other life-saving drugs, to the public domain prior to its expiration.
But what if we could also 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?
This modest proposal harnesses social reputation and collaborative filtering technology to create a peer review system of scientific experts ruling on innovation. The idea of blue ribbon panels or advisory committees is not new. But the suggestion to use social reputation software – think Friendster, Linked in, eBay reputation points -- to make such panels big enough, diverse enough and democratic enough to replace the patent examiner is.
“With enough eyes,” wrote Eric Raymond, “all bugs are shallow.” By using social software, we can apply the “wisdom of the crowd” – or, more accurately the wisdom of the experts – to complex social and scientific problems and bring more expertise to bear. This has far reaching implications beyond the patent process. It implies a fundamental rethinking of our assumptions about bureaucracy and expertise.
While Congress passes four hundred items of general legislation per year, federal agencies (of which the patent office is one) enact 4000-8000 regulations that translate those laws into the specific rules for everyday living: requiring seatbelts for cars, limiting the parts per billion of chemicals in the air, dictating the width of doorways in new home construction, restricting the use of dirty words on television. And federal agencies are only just the tip of the iceberg of work done by state and local agencies. While we have democratically-elected legislatures, we rely upon these non-elected “expert” bureaucrats because they are not swayed by political considerations. They have access to better, more scientific, more objective information.
Or do they?
In fact, overworked, unelected and unaccountable bureaucrats subject to a constant barrage of lobbyists make the rules. Even absent the problems of regulatory capture and political influence, the sheer volume of decisionmaking about complex scientific subject matter makes it impossible to make decisions in the public interest.
The patent office is supposed to stand in for the public to determine whether an invention, in the words of the Constitution, “promotes the progress of the sciences and useful arts.” Intellectual property law rests on this quid pro quo with the public. The agency as expert, on behalf of the public, decides whether an invention is worth twenty years of monopoly rights.
When an examiner tackles an application, he has limited time and less knowledge to assess fully how novel, non-obvious and useful an invention really is. Does the crustless peanut butter sandwich really represent a significant advance over the prior art? Do the claims of the patent for the thumb-shaped lollipop recite something truly novel? Has the marketplace of ideas been enriched and the progress of the useful arts been promoted enough to justify the twenty year grant of monopoly power for the one click shopping cart?
What if, instead, we used real experts to make policy?
It has become easier, cheaper, faster and more manageable to coordinate information- sharing among a group and to create and sustain productive groups. We are beginning to develop the social reputation tools to enable us to work together as a group on-line, to visualize the groups to which we belong and to accomplish tasks together collectively.
So what if we applied this new social software to the patent application process to give the public the benefit of the scientific community’s expertise? What if, instead of one examiner, an application had 1000 examiners? What if persons skilled in the art were asked how useful, novel and non-obvious an invention actually was? What if people had a chance to put forth prior art before the patent was approved, rather than after in a costly “interference proceeding”?
This Article argues that we can harness technology to get rid of bureaucracy altogether and replace it with a network of experts. If we do so, the new generation of social software that enables collaboration might not simply make it easier to get a date, it could bring about a democratic revolution.
How will it work?
Imagine that for every invention, the inventor has a choice. Go through an open, peer-produced patent process and receive twenty years of rights. Go through the traditional, closed process and receive a term of five years. The open patentee receives full rights of exclusion while the inventor who insists on the closed patent process receives a lesser grant of rights subject to challenge. The incentive will encourage participation. It also makes economic sense, as the quality of inventions in an open patent process will be stronger, and more innovative.
The patent examiner plays Linus Torvalds. His job is to coordinate the network of scientific and industry experts. The proposed invention will be published and put up for comment to a wide-range of experts who will assess whether there is relevant “prior art” – earlier inventions that might preclude the grant of a patent.
Why have one person judge whether something is new when twenty thousand experts can feed that information into the system? Designed right, the graphical networked screen allows more people to participate in a group for shorter periods of time because the screen makes it easier to understand the goals of the group, to see who is participating, what roles they play and what information has been gathered.
Initially, a wide range of input from experts will be sought by the patent office looking for relevant “prior art,” earlier inventions that may defeat the novelty of the current application. With more eyes on the process, the bugs become shallow. It is easier to spot problems with the application and apposite precedent. If the application survives this initial hurdle, a smaller and more committed group of those skilled in the relevant scientific art would examine the application to see whether it meets the other statutory tests of utility and non-obviousness. The determination of this scientific network would substitute for and replace that of the patent examiner. The group would decide the invention represents progress in the marketplace of ideas, not simply in the marketplace.
By means of more sophisticated information visualization and content management software, we can also track comments and we can see, at a glance, the views of the community of experts.
As the invention moves along through the patenting process, a more dedicated group of experts delves into the specifics of the application and comments on the merit of the invention based on the various statutory guidelines: novelty, utility, non-obviousness.
The expert will be able to comment in a variety of ways, including voting on a sliding scale or multivariate map in order to capture nuances of opinion.
The social software system incorporates what are called social reputation tools. The weight of a person’s comments is to be based on his reputation in the community. Each participating scientist will have the ability to rate other participants based on reputation and expertise in each of his or her stated specialties.
In other words, imagine if we took the kinds of technologies we are developing for on-line dating and applied them to the law to create social networking systems for scientific experts? An engineer would have a more heavily weighted vote than a biologist over a mechanical invention.
Rather than dictate a set of fixed reputation criteria, the social software will allow the scientific community to evolve its own standards of expertise. It is the people in each community who should say which journals are the most prestigious to publish in and which research is considered most valuable to the community. Because science is a collaborative enterprise with researchers building on each other’s work, only the community itself can dictate reputational criteria. At the same time, reputation is crucial to ensuring that a materials scientist has more to say about the invention of a new kind of tire rubber than a biophysicist.
In addition, the social networking components of the system are necessary to show the relationships between the experts and the companies in interest. Those with too close an interest will not be able to participate.
The inventor will be able to track the progress of the application on various visual and graphical charts that will show the reactions of the group as a whole without revealing the opinions of any one inventor. In that way, there can be no adverse employment consequences for the participating scientist.
So why would anyone participate in such a system? Why would it ever take off?
Inventors will participate because they want the stronger and longer grant of rights. They also want the social status and reputation that comes from passing a test by one’s peers. And if these reasons aren’t enough, they will participate because the same system can be used to create a market for the technology before the patent is granted. Part of the proposal laid out in this Article is to develop an auction for licenses in the invention via the same software. Imagine being able to generate a market for the exploitation of patented technologies at the same time as they pass through the patent office. This creates a strong financial incentive for participation.
Scientists will participate because this is just one more step in the already onerous process of record keeping and paperwork that public and private sector scientists go through to secure patent rights. But it will take far less time. Commenting on prior art can be done in a few minutes. Deciding whether an invention has been properly described may take longer but because the commitment is divided across a wider network, no one person has to participate over any great length of time.
They will participate because of the social status and reputation to be gained in the community of scientific experts from being an active participant. We should encourage the recognition of the expertise publicly by honoring those who participate.
They will participate because the scientific community will appreciate that having the community of scientific experts read patent applications will eventually improve the way the same community writes those applications. The design of the software and the way that it displays the parts of the patent application will encourage more precise drafting.
The only group that should not support such a system are the “patent trolls,” those who are looking for easy avenues to far-reaching patents that they can use as a stick to extract license fees through litigation or the threat of litigation. For such unproductive users of the patent system, this proposal represents a significant threat to their business model.
This Article lays out a detailed blueprint for the Peer to Patent system. Section II is the parade of horribles. It describes the current examination procedure, the statutory tests and its many weak points. Section III argues for the Peer to Patent system, a four-stage examination procedure that replaces the examiner with the judgment of a network of scientific experts. While the patent office plays a coordinating function, the network substitutes for the bureaucrat. Its judgment is binding law. Section III describes the prior art review, the statutory examination, the comment period and the market for licenses, which the Peer to Patent system incorporates as an incentive for participation and to promote the exploitation of patented technologies. Nothing in this proposal requires an act of Congress or any substantive change to the patent law, Section IV discusses the larger implications of Peer to Patent for the regulatory state.
The patent system in the United States is, without a doubt, broken. The patent office is the guardian of the marketplace of ideas yet, like all government agencies, it does not have the tools to do its job effectively and serve the public interest. This “fourth branch of government”
By using the technology available to tie expert reputation to the visualization of scientific information, it may be possible to improve upon the constitutional promise to promote the progress of science and the useful arts in our democracy and to ensure that only truly innovative ideas receive the odious monopoly of which the first patent examiner, Thomas Jefferson, complained. Done right, this may point the way toward a new model for the administrative state. It is not the New Deal notion of the bureaucratic expert administrator nor the interest group representation of mid-century nor the analytic management model of recent years. Each of these models suffers from the democratic deficit created by reliance on centralized information and expertise. Peer to Patent argues for a new paradigm of governance by the scientific community.
Stay tuned for full article.....