In a bid to shake up the beleaguered American patent system, a law professor has crafted a proposal that would shift the patent-application process away from individual examiners to an internet-based, peer-review method.
Called Peer to Patent, the proposal by Beth Noveck, director of New York Law School's Institute for Information Law and Policy, aims to relieve the current system, in which the U.S. Patent and Trademark Office has a backlog of half a million cases. Noveck's plan would turn the review process over to tens or hundreds of thousands of experts in various fields who would collectively decide an application's fate via a massive rating system not unlike that of eBay.
"The Patent Office is supposed to provide expertise on behalf of the public in determining the nature of innovation," said Noveck. "We now have the tools available to us in terms of social software to consult with experts directly and to engage (their) voice."
Noveck says such a system would allow patent applicants to benefit from the combined knowledge of field experts, ensuring that only the worthiest inventions get the 20-year grant of monopoly rights that come with an approved patent.
Under the plan, inventors who submit their work for peer review would be eligible for a 20-year patent. Inventors could also choose to use the existing system. However, in that case, patents would be granted for five years. Thus, Noveck argued, scientists would have an incentive to participate in the plan.
The proposal, which would not require legislation but would have to clear many hurdles before becoming reality, comes as the Patent Office faces scathing criticism from the legal and scientific communities. Most agree the current system is broken.
"The patent system is suffering from numerous compound fractures," said Jason Schultz, an attorney at the Electronic Frontier Foundation. "The overall structure of the Patent Office is antiquated. They have no way to keep up with the onslaught of patent applications, to do efficient searches or to reward patent examiners who do the right thing in the right way."
Even the Patent Office agrees its 4,000 examiners need help. John Doll, the acting commissioner for patents at the office, said that the backlog will grow by 85,000 cases in 2005 and that there is no single approach to solving the problem.
There are a number of existing proposals for patent reform, including the Patent Reform Act of 2005 authored by Rep. Lamar Smith (R-Texas), which would simplify the process of contesting granted patents and attempt to reduce the occurrence of patent litigation.
Noveck's idea is that by turning patent review over to field experts, applications will be evaluated by people who understand the issues rather than by an overburdened examiner who may have had to bone up quickly on a subject.
"The idea is to create a living, breathing ecosystem of scientific expertise," said Noveck, "where the community decides on its own criteria of expertise."
In addition, because the heart of Peer to Patent is a software system through which patent applications are filtered, Noveck hopes that it could be extended to include a bidding feature that would allow scientists to sell licenses for their patented inventions.
To Doll, Peer to Patent is intriguing, though not necessarily something he would endorse.
"It's an interesting idea, and an interesting perspective," Doll said. Peer review "is something that could be done right now, and I'm a little surprised that somebody hasn't started a blog (for that purpose)."
Other patent experts have mixed opinions about the proposal.
David Johnson, a visiting professor at New York Law School and an expert in cyberlaw, sees merit in opening up the patent-review process through the internet. He also believes the system could extend beyond patents.
"I think the net opens up the possibility of collecting views from a large group of people who have relevant experience on a given subject," Johnson said. "The proposal is a very innovative one and potentially opens the way to bringing more expertise into administrative processes of all kinds."
But Schultz has concerns about the viability of Peer to Patent.
"I think it's very optimistic," he said. "The heart's in the right place.... But if the 350,000 applications (per year) all went through this system, you're talking about something that is so massively complex and prone to mistakes, fraud and misinformation, I just can't see it working efficiently."
Noveck knows the proposal is far from implementation. But she thinks the patent system, and other bureaucracies too, could benefit from a system that brings the public into the review process.
"I think systems like this are not only possible, but are inevitable," she said, "as we begin to recognize ... the technological assumptions that underlie the lone expert bureaucrat making decisions. It's an impossibility and it's also unnecessary in the era of the internet."
