It might seem that creating such a centralized, standardized system would be relatively easy. However, the problem facing software patents, according to Red Hat’s Webbink, is the relative newness of a software patent.
“Unlike the chemical, biological, and mechanical arts, where there are hundreds of years of prior art available, the patent office has only been doing software patents for 20 years and doesn’t have a repository,” says Webbink. “The PTO feels it’s getting criticism for not doing thorough searches, but in fairness, there’s no easy place to go for some of this stuff. The industry needs to help them if they want the situation to improve.”
Earlier this year, Professor Beth Noveck, an intellectual-property lawyer at New York Law School, wrote a blog post about the need for the patent office to take advantage of the collective intelligence online to assist in vetting prior art. What was needed, she wrote, was something like a wiki, where people could contribute their expertise on various matters. “We’re at a critical moment,” said Noveck. “We have the social software available with collaborative filtering, social reputation systems, so that we can do online peer review. There is so much dissatisfaction with the patent process; this is a ripe opportunity to move to peer review.”
Not long after her posting in July, Noveck was contacted by IBM about the idea. The company had been considering something similar. Since then, Noveck has written a draft proposal for the plan and, in good form, has launched a wiki for people to contribute thoughts on the proposal. The system could work as follows: vetted experts in various fields sign up for RSS feeds and receive alerts whenever a new patent application is posted online that fell within their expertise (such applications are available to the public). The experts could contribute their thoughts to the appropriate examiner on whether or not prior art existed, assisting in the patent process. “What might take an examiner 15 to 20 hours to research and determine might take an expert 15 minutes,” says Noveck.
Patent office commissioner Doll is excited by the collective intelligence idea, but is concerned that it might run afoul of some of the office’s legal frameworks. “It’s a great idea,” he says. “The problem we have is we have a statute and we’re restrained from opening the examination for anyone other than a patent office examiner.” However, Doll said there might be a window of time in which outside opinions could be heard – after the patent application has been made public, but before the grant is awarded. “Our legal staff is looking at that right now.”
Meanwhile, Noveck is launching a nationwide tour in the early spring to colleges and intellectual property think-tanks to help vet the idea; and the companies involved in the repository and indexing projects are already at work. Interested parties can attend a public meeting on the various proposals at the patent office on February 16.