The United States Patent and Trademark Office (USPTO) is in a pretty tight spot. The entire office is buckling under the weight of more than 600,000 backlogged applications. Within the software office, the time from application to resolution is typically four years – with the first replies from an examiner taking almost two years. For the technology industry, where product cycles routinely last only a few months, that’s stultifying.
Faced with this overload, the USPTO announced this week that it’s exploring forward-looking partnerships with technology companies, such as IBM, Red Hat, Novell, and Google, to create three evaluation systems, being worked on concurrently, to both increase the quality of software patents and shorten the time it takes the office to either issue or decline a patent.
One project would create a centralized, searchable repository of all open-source code and related documentation in existence. The second would create an indexing system to rank the viability of patent applications. The third would tap into the greater community’s intelligence when reviewing patent applications (something organizations such as Wikipedia have done for years, albeit toward a different goal).
All three of these projects would take advantage of a couple of the most lively trends on the Web right now: metatagging and social networking Metatagging allows individuals to add descriptive terms to online elements, such as photos or files, which make the files easier to find by others. Social networking sites such as Flickr and Delicious have built businesses, in part, around tagging and make it easy for people to share their expertise and opinions among designated “friend” groups or the community at large.
Metatagging may come into play with the patent office’s search tool and repository, although opening up the repository to even a limited number of people may prove troubling for some. In addition to creating a centralized repository for all open-source code and related materials (diagrams, documentation), the project group is also considering creating a taxonomy so that open-source developers can “label” their code to help patent examiners and other interested parties understand what it is. “The public could use it as well,” says Mark Webbink, deputy general counsel for Red Hat, and open-source seller on the Web. Then, a partner such as Google or IBM could create a search tool that would combine all the data and allow examiners to hunt the repositories for prior examples – as simply as someone might search for an online recipe.
“We need a tool that will enable sifting through the code in such a way that’s useful to the patent examiner,” says Manny Schecter, an associate general counsel for IBM. “We should be able to have it done this year.”
The problem, however, is that opening up the system to the public would make it difficult to create a standardized system that would be usable by the patent office. Today, patent examiners must peck and hunt through an almost infinite amount of information to determine prior art for software patents. (“Prior art” is the office’s term for a previous example of the item up for patent consideration.) If such an item is discovered, a new patent can’t be awarded. Organizations such as SourceForge and the Open Source Development Lab are invaluable resources, but still aren’t exhaustive in their collections. “There’s a lot within the open source community that’s valid prior art, but because of how it’s stored, it’s not accessible to examiners,” says John Doll, commissioner of patents with the USPTO. “We have a hope that if we have a standardized system, we can find it in the future.”
By “standardized system,” Doll means a system in which any type of open-source code can be searched using a centralized search tool, regardless of what format the code exists in.