Finally: IBM Proposes Peer Review to Manage US Patent Applications

Martin Dittus · 2006-02-07 · a new world, commentary, intellectual property · 3 comments


For the last couple of years I've been toying with ideas on how to cut back on my expenses, and one of the top items is the plan to cancel magazine subscriptions. They don't actually cost that much, but I've been getting better information elsewhere, and usually quicker; to me the print media is on the verge of becoming irrelevant.

But every couple of months I stumble upon an article in the printed press that I didn't catch via other channels, and that manages to refresh my interest in the old media. Today was one of those days: while flipping through Saturday's edition of c't magazine (Germany's best IT news source in print) I got to know about a new venture IBM and some other parties announced back in January: the Peer to Patent Project, an attempt to establish community peer review for patents.

Here's how they describe themselves:

The patent system needs our help. The United States Patent Office is actively seeking ways to bring greater expertise to bear on the review of patent applications and ensure that only worthwhile inventions receive the patent monopoly. Currently, underpaid and overwhelmed examiners struggle under the backlog of applications. Under pressure to expedite review, patents for unmerited inventions are approved. [...]

The Community Patent Project aims to design and pilot an online system for peer review of patents. The Community Patent system will support a network of experts to advise the Patent Office on prior art as well as to assist with patentability determinations. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the “wisdom of the crowd” – or, more accurately the wisdom of the experts – to complex social and scientific problems. This could make it easier to protect the inventor’s investment while safeguarding the marketplace of ideas.

To improve the sorry state of the US patent system IBM proposes an approach comprised of three elements: first an open, peer-reviewed patent application process (which is where the quote above comes from); second a process to evaluate and establish prior art cases in open source software; and third a process to establish a "patent quality index", which is to be a numeric evaluation of the quality of patents and patent applications. (The last part sounds a little esoteric to me, and gives us a hint at how artificial a construct intellectual property law actually is. How can you seriously consider to compare two unrelated ideas in terms of their "quality", whatever that is?)

To me the most interesting part is the first proposal; it was about time that the USPTO introduced peer review to the patent system. I wrote about a similar idea back in September of 2005, which I consider to be fairly late for such an obvious concept (see "RFC: Patent Approval Process via Communities"). And yet I'm surprised how quickly these established mainstream organizations caught up with the state of things -- this sounds like something that might actually happen.

Of course there are a number of practical obstacles. How do you reconcile peer review with the (understandable) desire to keep patent applications private? How do you handle conflicts of interest, where the guy best suited to evaluate your patent application might be your direct competitor? How do you make such a system tamper-proof and "spam"-resistant? Who do you include in the discussion? How can you motivate enough individuals from both a scientific and an industry background to partake in the process without having to actually pay them? Can private citizens participate, too?

Establishing such a scheme is really hard, and besides changes in the way government does its job it requires support from major industry parties. It's probably not surprising that this turned out to be IBM's part, considering their recent foray into more open development practices. Yeah it's great that the OSDL is involved too (apparently mainly for the second element of the proposal, finding prior art in open source software), but it's neither a large step for them nor do they endanger their livelihood as much by "risking" a more open process; it's the established industry that actually needs to change its modus operandi.

So it's going to be very interesting to watch this evolve. It'll take some time to review the existing documentation (let me know if you find a good blog/overview about this), but I suggest you subscribe to the Peer to Patent Project feed, and start discussing these ideas with some managers and IP lawyers in your area of influence to get the ball rolling. I know I will.

And if you actually live in the US (which I don't) you'll have a chance to see the project evolve, and to have an influence on its direction: see the Workshops and Events page for details. ("Hosted by preeminent faculty at leading universities and convened by Professor Beth Noveck, Director, Democracy Design Workshop, New York Law School, the Workshops will meet around the country during Spring 2006.")

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Why should people be involved with reviewing patents. This whole patent discussion is the world upside down. Just to get right to the core of the problem with patents. The only people that benefit from IT are lawyers. In processing patents, in lawsuites, in settlements, in patent research. This takes money away from research, where else does it come from ?

People from the european commision keeping saying that small and medium sized businesses want software patents. They ask us how we could use them and how it can be made easier to get patents. You know how the patent flow to the US patent and European Patent office can be reduced ? Simple by providing stricter criteria for software patents!

I kind of find it a weak excuse there so busy. Remeber the IBM patent who is next to determine to go to the toilet. There are so many people that look at patents and within five minutes can tell you the claims are overbroad or its simply not novell enough.

The Australian patent office approved a patent some years ago on a circulair transportation device!

You get the impression patents are pushed in printer and just stamped, approved, approved, approved.

Look at most of the software patents beeing submitted for review! I mean Microsoft has 14 patents on the cursor. There are so many patents being approved that are obvious as hell. The Amazon 1 click buy patent ?

So why should people from open source projects burn time looking at patents. Instead of spending time writing innovative software like Firefox or Apache.
Goverment leaders everywhere want to boost innovation. Why is there never listened to people from the ICT industry. Most companies get software patents to protect and against silly lawsuites. And with 400.000 patents granted last year in the U.S. with plenty of software patents we should contribute time to look at these patents ?

Its the world upside down this patent discussion.

Roderick Klein, 2006-02-08 22:00 CET (+0100) Link

Roderick, thanks for the insightful comment. I agree with your position that software patents in general are often of dubious value; and I agree of course that there probably need to be a narrower definition of what kind of invention warrants a patent. But in the end such a definition of a patentable idea can only be enforced if you actually check every individual patent thoroughly, and that's where this IBM approach makes a lot of sense to me.

Quick reply to two other points you made:
> Why should people be involved with reviewing patents.

Read my older article on this at where I describe how surprisingly efficient the Slashdot mob is in dismantling bogus patents.

> So why should people from open source projects burn time looking at patents.

As far as I understand it, the "Open Source Software as Prior Art" initiative is also an effort to ensure that open source software can exist without them having to partake in the patenting madness; to ensure that open source software developers have the means to defend themselves in a patent lawsuit. (It's not so far-fetched to imagine companies suing open source projects for patent violations where the the open source project predates the patent).

Martin, 2006-02-08 22:20 CET (+0100) Link

I'm a bit late in supplying comment back. The initial idea of peer review of patents is nice. And indeed I have seen very interesting discussions at slashdot. But I already see you agree with stricter guide lines for patents.

But its not just open source software at steak. Also the smaller and mid sized companies simply not capable to run after these patents. Also note that not all patents that the US patent office approve each year reach the slashdot discussions. Daily silly IT patents are approved... Again its the job of the patent office to first put a VERY VERY thight filter on the patent they approve! Then a patent peer review system can be discussed I gues :-)

Roderick Klein, 2006-03-04 17:30 CET (+0100) Link

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