Joseph N. Hosteny's column, Litigator's Corner, reviews Peer-to-Patent in the November issue of IP Today. In the article, Hosteny agrees with the project fundamentals:
The focus of the project is certainly on the correct point in the process – i.e., during the original application, so that the job can be done right in the first place. The problem with all the reforms proposed by the Patent Reform Act thus far is that they do not attack the problem at its root, in the original application process, where it can most readily be resolved...The Peer to Patent Project rightly aims its work at the original application. Post-grant oppositions are efforts to repair a mistake, not prevent it in the first place.
Hosteny also goes on to commend some of the project's functionalities:
The Peer to Patent Project does have some very promising features. For instance, only the ten best references are forwarded to an examiner. One of the problems in modern applications is the blizzard of references submitted by prosecuting attorneys, who feel they must pass the buck to the examiner for fear of being accused of inequitable conduct. Peer to Patent seems to recognize that a limited number of references is generally enough to show what the prior art is.
Hosteny closes with an optimistic view of what Peer-to-Patent can accomplish:
On the whole, Peer to Patent is an interesting concept, and a worthwhile experiment. With fine-tuning, and more people participating, it will, I hope, improve the patent system. Much depends on how many people are willing to spend time reading applications and citing art. It can’t solve all of the defects that so many people have noted in the Patent Office, but we have to start somewhere. In any case, those defects must be dealt with. Funding needs to be guaranteed, an adequate number of properly trained examiners must exist, and those examiners need to have access to both patent and non-patent literature. Nor can Peer to Patent solve the uncertainties created by appellate decisions that reverse so many claim constructions, and that treat the specification as the claim. But, having the public participate in the patent system is an idea that bears watching. It demonstrates more imagination than the Patent Reform Act.
Joseph N. Hosteny is an IP attorney at the law firm of Niro, Scavone, Haller & Niro. The article can be read in its entirety here.