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New Peer Review Website Offers Path to Patent Reform

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It could be called the blog post heard ’round the world — or at least around the United States Patent and Trademark Office. It all started back in July of 2005, when New York Law School Institute professor Beth Noveck posted a critique on her blog about the USPTO’s patent application review system. In it, she pointed out several examples of what she viewed as chronic flaws in the application system, including the fact that multiple patents have been given for the same invention as well as the increasing number of multi-million-dollar lawsuits resulting from such erroneous patents. “Because the patent office is not always effectively able to do their job, you have a lot of people who write totally undeserving, egregiously overbroad applications that are not novel,” says Noveck. “This gives them a hunting license to sue other people, and then everybody loses, including legitimate patent holders.”

Instead of leaving it up to the patent reviewers, Noveck proposed the establishment of a website where the public could provide commentary on patent applications. Her vision was realized this June when her school’s Institute for Information Law and Policy together with the USPTO launched peertopatent.org, a year-long pilot program to test public participation in the review process of roughly 250 software patent applications. “It’s the first of its kind, because up until now, it was not possible for the public to provide commentary on pre-grant applications,” Noveck says.

When the media first caught wind of her blog posting, they contacted the USPTO for comment, but it was the first time the patent office had ever heard of the concept. The idea began to take shape, however, when IBM, one of the largest patent holders in the world, glommed on to the proposal. IBM contacted Noveck and offered to help sponsor the research and make the site a reality. Other big players including HP, Red Hat, Microsoft, Yahoo, Sun Microsystems, and Intel soon followed suit. These companies have a special interest in patent reform, Noveck says, because software vendors can sometimes wait up to five years before receiving a letter from the patent office confirming that their application has been reviewed.

The website asks people to include prior publications — known in patent law as prior art — with extensive bibliographic information and an explanation of why it is relevant. So far, the site has posted seven applications for public review including some submitted by Intel, IBM, HP, and Red Hat. “By asking very targeted questions, the goal is to get very targeted feedback that’s useful to the patent office,” Noveck says. “This is not Wikipedia. We don’t need a million people to participate; what we need is five people who know something about a particular invention.”

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