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Friday, December 08, 2006

Should we have a European Version of a Peer-To-Patent Pilot?

As I had

reported a few days ago, the UK Gowers Review published earlier this week comprises a somewhat bold proposal, namely to make UK Patent Office conduct a pilot of Beth Noveck's Community Patent Review in 2007 in the UK to determine whether this would have a positive impact on the quality of the patent stock.

The UK Government had asked Mr. Gowers to lead an independent review to examine the UK's intellectual property framework. On the basis of such starting point I understand that it must be completely clear that there was no mandate for Mr. Gowers to investigate or even discuss any measures specifically on EU or EPC level. However, the question which - at least in my view - is immediately arising from his proposal concerning a pilot of Beth Noveck's Community Patent Review in 2007 is whether it should be installed - additionally - on a pan-European scale at the European Patent Office (EPO). This would lead to a much larger testbed than any project strictly limited to the UK.

Ms. Noveck has published an interesting article on the

"Peer To Patent" project in the Havard Journal of Law & Technology which is available

on-line. Ms. Noveck writes primarily in view of the situation in the U.S.:

"[...] There is a crisis of patent quality. Patents are being issued that are vague and overbroad, lack novelty, and fail the constitutional mandate '[t]o promote the Progress of Science and useful Arts.' Low quality patents generate excessive litigation and confer the economic rewards of monopoly on patent holders while providing little benefit to the public. [...]"

Her starting point might be encircled by this further quote from her article:

"[...] We have arrived at a unique moment in history when five factors converge to make this kind of reform proposal possible [bullets added, --AHH]:
first, the state of patenting has become so problematic as to meet with almost universal opprobrium;
second, the majority of patent applications are published after eighteen months whether ultimately granted or not, providing the legal foundation for open review;
third, expert public participation in the form of peer review is widely practiced in the public sector and therefore is a familiar model;
fourth, we have social reputation and networking technology that makes open review on this scale possible; and
fifth, we have the necessary expertise with collaborative decision-making systems to be able to design and construct a new model of administrative practice for the USPTO.
This Article describes the patent system's information deficit problem and outlines a detailed draft blueprint for the Community Patent Review pilot. [...]"

She justifies her approach in particular as follows:

"[...] In other domains, the combination of open technology and well-defined process has successfully enabled a distributed group to share expertise. Open self-selection, rather than closed peer review, makes it possible for Wikipedia to harness public knowledge and create an encyclopedia with over one million entries of quality comparable to that of traditional, centrally edited encyclopedias. New technology has enabled Amazon to create a marketplace, not just for the sale of goods and services, but also for the aggregation of expertise and recommendations about those goods and services. CNET offers a platform to share expertise about electronics and technology. The Internet Movie Database, the largest repository of information about cinema, draws much of its content from volunteers submitting data about films and movie stars. The Public Library of Science, the pioneering open access publisher of scientific journals, is launching PLoS ONE, a distributed knowledge network to enable scholars of biology and medicine to discuss published research literature.

These experiments with online collaboration have shown that often 'ordinary' people possess extraordinary knowledge that they are willing to share when it is easy to do so. Making participation open and subject to self-selection can leverage not only the 'wisdom of the crowd' but also its enthusiasm. Experience with the tools now available is undermining traditional assumptions about how expertise must be organized and pointing the way toward the use of open models of scientific review to inform legal decision-making. [...]"

The intended procedure can be sketched as follows:

"[...] Under the terms of the program, patent applicants may request review of their patent application under the Community Patent Review process. Once an applicant makes the request and files a consent with the USPTO, a copy of their patent application will be transferred to the Peer-to-Patent software system for a period of review. Each application will reside on a webpage where users can submit relevant prior art for two months. The two-month window tracks the amount of time currently available to members of the public wishing to submit written prior art under Rule 1.99. Limiting the time for submission will ensure that excessive volume does not overload the patent examiner or delay substantive patent examination. It may also create an impetus to participate by offering enough time for thoughtful work without inducing delay. On the basis of experimentation, the window for input may be increased to four or more months.

To ensure that those with the necessary know-how can navigate to the right patent application, the design of the software system must be optimized to ensure participation. Potential contributors can search applications, share them with colleagues, and subscribe to receive notifications and updates. Visualization aids will help contributors track the level and contentiousness of activity around a particular patent application. These aids may not only help to make information about the patent application visible to participants, but also make help the community involved in submitting prior art more self-aware. To suggest patents to review, the system might employ a collaborative filtering system akin to Amazon's - prompting users with statements such as 'People who submitted prior art for this patent also read Patent X.' [...]"

(Fig. taken from Noveck, op. cit.)
I would like to seize the opportunity to put a question in analogy to Gowers Review: Should we have the European Patent Office to conduct a pilot of Beth Noveck's Community Patent Review in 2007 in Europe to determine whether this would have a positive impact on the quality of the patent stock?

Any answer to this question might be directed to two different aspects:

A first aspect is directed to the question as to whether or not the EPO process of substantive examination needs or deserves improvement by a peer to peer project. In this respect I do not see any difference between any conceivable justification to conduct such a project in co-operation with the UK Patent Office, on the one hand, and with the EPO, on the other hand. In any case it should be borne in mind that it would be a pilot project set up for gaining additional experiences and insight. It should not be construed in any way to the effect of a prejudgement against the level of quality as delivered today. The situation at the USPTO surely can not be set equal to that at the UK Patent Office or at the European Patent Office.
A second aspect is directed to the transformation of the rootedness of the patent system in the technology-skilled class of Europe. Those engineers and/or scientists having participated in such a "Peer To Patent" project might perhaps thereafter not be the same as before. It is widely known that in particular skilled engineers working in SMEs often have less or no knowledge of the patent system. Providing incentives for some active involvement in the patenting process by offering participation in a peer-to-peer network might well help not only to improve patent quality but also help to spread throughout society some knowledge about the system of Intellectual Property protection. There surely would be some sort of a return flow in terms of knowledge and insight from the peer-to-peer project into the European industry. This might, hence, help to fight pointless anti-patent activism or event patent abolitionist politics.

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[UPDATE 2006-12-09] Mr. Tilo Bachmann, Administrator, European Patent Office, has just been appointed Member of the

Advisory Board for Community Patent Review - whatever this news might mean for any future involvement of the European Patent Office.

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Friday, December 08, 2006

Should we have a European Version of a Peer-To-Patent Pilot?

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