The Institute for Public Policy Research hosted the most recent "Peer to Patent" Workshop in London on May 25. IPPR's Digital Society and Media Initiative focuses, among other topics, on the future of intellectual property and the knowledge economy. The invitation-only workshop brought together a patent-knowledgeable group of thought leaders from the public sector, industry, academia and the public interest.
Will Davies, Senior Research Fellow, introduced the workshop. Nicola Kay, a policy adviser at HM Treasury then spoke about Current Policy in the UK and the Gowers Review of Intellectual Property, the government's initiatve to examine the United Kingdom's intellectual property framework.
Then I presented the CPR project with a wonderful response from Dr Roger Burt, Intellectual Property Law Counsel, IBM Europe. Roger led the group in an exercise of peer reviewing an IBM patent and surprised everyone by demonstrating how quickly the group with no prior training could produce valuable, common sense information that the patent office (in this case, the EPO) did not.
In the discussion that followed a number of interesting comments and questions in reaction to Community Patent Review were raised. Some are new and some were articulated at earlier workshops. All are instructive. I have not reproduced the comments of praise and support but chosen, instead, to list twenty of the questions. While some raise difficult and thorny issues, others are easily answered but show where the perception of challenge lies:
1) Wikipedia has demonstrated the prevalence of power laws on the web. We know that a small number of people produce a large amount of information. Hence if we assume that a small minority will be producing information in this process, what is to ensure that this will serve the public interest?
2) On Slashdot, the norm is to reward the funniest or snarkiest postings. Why won't that happen here? How do you ensure quality?
3) Google Answers is a useful model.
4) Social software projects always face great challenges in terms of adoption. In this project, you need to get adoption from those willing to have their patents reviewed and those doing the reviewing. How will you do it?
5) Will you focus on getting the USPTO to release an API so that more people can manipulate the data?
6) Frequently, prior art gets cited but does not actually get used or taken into account by the examiner. How will you ensure that art that is proposed is considered? You do not want the patent to enjoy a presumption of validity if the art that is proposed was not considered.
7) What is to prevent people from suppressing prior art of which they have knowledge?
8) What about willful infringement? Can people get in trouble for participating in this system? Will company scientists be able to participate anonymously?
9) Take a look at the Walmart web page for a good example of "astro-turf," ie fake grass roots marketing. What is to prevent people from gaming this system, too?
10) Won't a system like this lead to the granting of more rather than fewer software patents? With examiner time and resources free up, won't this increase the rate of patenting?
11) All public participation systems have a bias toward "nay saying" and voting proposals down. Won't this system have a bias toward defeating patents?
12) This could offer an ideal auxilliary education tool for examiners and should be designed in such a way to work with and not against the workflow expectations of examiners.
13) Such a system should get the peer reviewers to focus on the language of the claims themselves. Even if it is hard and complicated, focusing on the claims will produce the most useful input for examiners. (The opposite view was also expressed, suggesting that the peer review process focus on the preferred embodiment language, instead, and that, in any event, focusing on the claims will not prevent people from commenting on the specification).
14) Will international comments be allowed by people residing outside the US?
15) Is there any data or studies showing how examiners work in the Internet era? Do they consult Google? How do they work and work differently than in the past?
16) Will this increase the costs for SMEs (small and medium sized enterprises) who will have to bear the costs of responding to the CPR prior art? How do you keep costs down for these applicants?
17) Will the examiner be allowed to provided feedback to the community on the Top 10 of prior art? Can he or she comment on what was useful or direct the community to go out and find answers to specific questions?
18) Should comments posted to the system go to the examiners or only the art? Comments would be helpful.
19) Be sure that this system does not lead to attacks against the examiner or undermining his work.
20) Get examiners involved in the design process
