A Wiki-Patent Process

Stephen DeAngelis

March 8, 2007

I recently posted comments about the importance of patents and noted there have been criticisms of the patent system, including the fact that people are more frequently patenting ridiculous ideas with little or no value. I also noted that Microsoft has been in the news lately, having just lost a patent battle. Blackberry users are also aware its manufacturer’s patent struggles. The software sector continues to have its share of such court cases. To battle the proliferation of patents, especially in the software sector, the U.S. Patent Office is going to solicit the public’s help in determining the value of patent applications [“Open Call From the Patent Office,” by Alan Sipress, Washington Post, 4 March 2007].

“The government is about to start opening up the process of reviewing patents to the modern font of wisdom: the Internet. The Patent and Trademark Office is starting a pilot project that will not only post patent applications on the Web and invite comments but also use a community rating system designed to push the most respected comments to the top of the file, for serious consideration by the agency’s examiners. A first for the federal government, the system resembles the one used by Wikipedia, the popular user-created online encyclopedia. ‘For the first time in history, it allows the patent-office examiners to open up their cubicles and get access to a whole world of technical experts,’ said David J. Kappos, vice president and assistant general counsel at IBM. It’s quite a switch. For generations, the agency responsible for awarding patents, one of the cornerstones of innovation, has kept its distance from the very technological advances it has made possible. The project, scheduled to begin in the spring, evolved out of a meeting between IBM, the top recipient of U.S. patents for 14 years in a row, and New York Law School Professor Beth Noveck. Noveck called the initiative ‘revolutionary’ and said it will bring about ‘the first major change to our patent examination system since the 19th century.’ Most federal agencies invite interested parties to weigh in on proceedings, and even the patent office allows some public comment, but never to the degree now suggested.

Sipress notes that the biggest concern about using a wiki-like system for commenting on patent applications is revealing proprietary information. It’s the reason that such a system has not been tried earlier. The explosion of patent applications, however, has reached a tipping point. The 4000 U.S. patent examiners can no longer keep up with the workload if they conduct the kind of in-depth research on patent applications that they need and deserve. The new wiki-like program will, according to the article, begin by posting applications from those who voluntarily agree to the plan.

“Under the pilot project, some companies submitting patent applications will agree to have them reviewed via the Internet. The list of volunteers already contains some of the most prominent names in computing, including Microsoft, Intel, Hewlett-Packard and Oracle, as well as IBM, though other applicants are welcome. Brigid Quinn, a spokeswoman for the patent office, said the program will begin with about 250 applications from the realm of software design, where it is especially difficult for examiners to find related documentation. Unlike specialists in many other fields, software designers often forgo publishing their innovations in technical journals and elsewhere. Anyone who believes he knows of information relating to these proposed patents will be able to post this online and solicit comments from others. But this will suddenly make available reams of information, which could be from suspect sources, and so the program includes a ‘reputation system’ for ranking the material and evaluating the expertise of those submitting it. With so much money riding on patent decisions — for instance, a federal jury ordered Microsoft last month to pay $1.52 billion for infringing two digital-music patents — the program’s designers acknowledge that the incentive to manipulate the system is immense. … The new patent system will try to help separate experts from posers by offering extensive details about the people sending information to the site. To help others evaluate the quality of this information, called prior art, each posting will include several measures gauging the quality of his other contributions to the site. Patent examiners, for instance, will award ‘gold stars’ to people who previously submitted the most useful information for judging earlier applications, Noveck said. Ultimately, those registered to participate in this online forum will vote on all the nominated information, and the top 10 items will be passed on to the examiner, who will serve as the final arbiter on whether to award a patent.”

Unlike some sites where voluntary contributions bring little beyond personal satisfaction as a reward, the patent site process could have enormous financial consequences for individuals and corporations alike — which should help insure that there is plenty of interest in helping. There will be kinks to work out, but companies like Microsoft could save millions of dollars by identifying and negotiating early with patent holders who could later derail mature software programs. The taxpayer should also end up a winner since this kind of program helps keep down the cost and size of government.