Opening Up the Patent Process

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An example of a patent that was ultimately denied because it was obvious is Amazon's 1-Click system. Amazon's 1-Click patent describes how a single button press by a customer performs an immediate online purchase. It was granted in 1999, but Peter Calveley's grassroots campaign in 2006 led to a post-grant examination. He publicly criticized the patent in his blog and collected donations online to pay for the reexamination fee. The prior art and previous patents he uncovered proved to the patent examiners that, rather than being innovative, 1-Click described a common way for online retailers to conduct business using established technologies. Calveley's case demonstrates the drawbacks of the USPTO system: an unworthy patent nearly made it through the vetting process because the examiner didn't have access to prior art and enough technical knowledge to make the correct determination.

Noveck is familiar with Calveley's case, and she says it demonstrates a benefit of Peer-to-Patent: "Part of what we're trying to do in the pilot is to allow collaboration earlier in the process." Participants discuss the validity of claims by posting messages, uploading digitized prior art, and voting on the Peer-to-Patent site. The 10 best pieces of prior art that emerge through this process are forwarded to the patent examiner at the USPTO. Software companies such as Sun, Microsoft, GE, IBM, and Redhat have all volunteered to have their patents examined via the Peer-to-Patent website. According to the USPTO, the test run will focus on software due to the tech-savviness of experts in the field, as well as the current difficulty of locating and dating prior art in the field.

Results from the first series of patent applications reviewed through Peer-to-Patent won't be back for several weeks, but Peer-to-Patent users already see advantages. Mark Nowotarski, president of Markets, Patents & Alliances L.L.C. and a U.S. patent agent who participated in the Peer-to-Patent trial, says that unlike the current approval process, Peer-to-Patent "creates immediate value for the applicant" by exposing prior art. "The earlier we find out about a significant piece of prior art, the better," he says. Nowotarski does note one area for improvement: once patent claims have been filed with the USPTO, the current system does not allow them to be modified in response to comments and prior art.

Focarino says that the USPTO will measure success based on a comparison between the prior art submitted by Peer-to-Patent and an independent search performed by a patent examiner. If prior art provided through the website over the one-year trial period is of higher quality than the examiner's, the USPTO will consider expanding the project to include other types of patents. Noveck defines success more broadly: "We succeed if we bring awareness to the idea of more open forms of government participation."