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February 12, 2009

Work for the Patent Office, for free!

The Peer-to-Patent system created by Beth Noveck's group at NYU Law School and being piloted by the U.S. Patent Office has gotten a fair bit of attention. The basic idea is to gather user-contributed content from experts who can help patent examiners figure out whether a proposed invention is novel (no prior art). Anyone can submit comments on the posted patent proposals, and in particular can cite to evidence of prior art (which generally leads, if valid, to denial of the patent application). The purpose is to speed up patent reviews, and in particular to help prevent the granting of invalid patents, because it is often costly, time-consuming and chilling to later innovation to fight and prove a granted patent is invalid.

Andy Oram wrote an editorial in the Feb 2008 Communications of the ACM urging computer scientists to participate (viewing article may require subscription). He explained the system, and why it would be good for innovation for experts to donate their time to read and comment on patent applications.

Why would experts -- whose time is somewhat valuable -- want to do this? Andy argues that the primary reason is public service: donate to create a public good (better software patent system) for all. There are lots of ideas of things that would be "good for all" that require volunteer donations of time, effort, money. It's actually not a given that such public goods are a good idea: the value of a public good does not always or automatically exceed the cost of the time or other resources donated by the people who created it. The experts who Andy seeks to contribute to Peer-to-Patent are highly trained people whose time is generally valued quite highly. In any case, if P-to-P depends on volunteer contributions by experts, how likely is it to succeed? These are people who already feel deluged by requests to volunteer their time to referee conference and journal articles, advise students on projects, advice government, serve on department and university committees, serve on professional organization committees and edit journals, etc., etc. I know few serious, successful academics who work less than 50 or 60 hours a week already.

Andy also suggests another reason to volunteer time for Peer-to-Patent: the bad patent you block may save your startup company! Now we're talking....a monetary incentive to "volunteer" time. But this is a bit problematic too: it points out a strategic concern with P-to-P. Potential competitors, or entrepreneurs who at least want to use the disclosed invention, have an interest in trying to block patent applications, and may try to do so even if the invention is legitimate? They can flood the Patent Office with all sorts of "prior art", which may not be valid, but now the patent examiners will have more work to do. And just as patent examiners may conclude incorrectly that a patent application is valid, so may they conclude incorrectly that one is invalid. It's not prima facie obvious, especially given that those most motivated to "donate" time and effort are those who themselves have a financial stake in the outcome, that user-contributed content in this setting will be a good thing, on balance.

Posted by jmm at 05:29 PM | Comments (2)