Is the US Patent and Trademark Office moving to an open source patenting process? Not quite, but they are starting a pilot project using a Wiki model to gather public input on pending patents. The big problem: judging the reliability of the information and prevent gaming the system. As the Washington Post reports (Open Call From the Patent Office):
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 answer is a system similar to e-Bay's reliability measures:
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, [project consultant New York Law School Professor Beth] 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.
The system looks like a good experiment to me. There are a number of concerns about patent examiner's being overloaded and unable to research all relevant information and "prior art" (aka previous similar patents and inventions). Public input systems have been talked about for a number of years to help alleviate the problem. A number of reports, such as the National Academy of Science's report A Patent System for the 21st Century and the Federal Trade Commission's To Promote Innovation: The Proper Balance Of Competition And Patent Law And Policy, called for a more open review system. The PTO project looks like a good start in that direction.
More may still need to be done, especially in terms of a post-grant review of patents short of actually infringement litigation. And the pilot project will need to be carefully monitored and reviewed.
But it is a step forward, and needs to be supported.
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