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How Does a Project Like Peer-to-Patent Justify Its Keep?

BY Nancy Scola | Wednesday, July 22 2009


(Source:
Peer-to-Patent Second Anniversary Report, Center for Patent Innovations at New York Law School)

When it comes to opening up government to the public, how do we measure success? In just a handful of years, we've seen participatory democracy empowered by technology moving from a crazy notion at the fringes of politics to an operating principle accepted at the highest reaches of government, including 1600 Pennsylvania Avenue. But if citizen-driven politics is to become politics as usual, we'll likely hear the question asked more and more -- is it worth it? What is the return on the investment of the government's time, resources, and attention into cracking open the political sphere to citizen engagement? In other words, how do open government projects operating within the government bureaucracy justify their keep?

That's the provocative subtext to a new report out from New York Law School's Center for Patent Innovations, the academic institute that oversees the Peer-to-Patent project. "As we conclude Year Two of the Peer-to-Patent project I am reminded of the opening line of Charles Dickens’s A Tale of Two Cities: 'It was the best of times, it was the worst of times,'" writes Mark Webbink, executive director of the center. The 'best of times' because Peer-to-Patent has been successful in demonstrating how people can be called on to participate in their government. The worst, because the U.S. Patent and Trademark Office has called a moratorium on the Peer-to-Patent until they can evaluate what impact it has had on fixing the U.S.'s troubled patent system in its two-year run.

Peer-to-Patent is one of the best-known examples of engaging citizens online to do the heavy lifting of government, featured prominently in "Wiki Government," the new book by deputy U.S. CTO for open Government Beth Simone Noveck, who launched the online patent-evaluation process back in her law school professor days. "As the Obama administration continues to explore new and varied ways to make government more transparent and open," writes Webbink, "I believe Peer-to Patent will be viewed as the beacon that lit the path."

The goal of Peer-to-Patent is, in short, to use external expertise to pull together the best available collection of documentation that either supports or challenges a patent application. The two-year pilot project focused on applications in the complex fields of software and digital "business methods" patents. The ten pieces of prior art rated most highly by the community get sent on patent examiners in the Patent Office, hopefully lightening their load and making the examiner more knowledgeable about the patent application that has landed on their desk. The Peer-to-Patent site might heavy use of social tools, including tagging, RSS feeds, and "sparkline" graphs charting how citizen-experts were participating in the process. "The online Peer-to-Patent program has dramatically opened up the process," reads the New York Law School report, "not only to lawyers but to scientists, engineers, students, and other patent enthusiasts as well."

Peer-to-Patent broke new ground in participatory government, but USPTO has decided that the time has come to judge whether it's worthwhile to continue the project as part of the standard practice of how the U.S. vets patents. The Patent Office says that it will do its own evaluation of the project once all of the several dozen applications still in the Peer-to-Patent pipeline have been processed. Peer-to-Patent was launched to help fix a patent system that is, by general consensus, broken. But there are no doubt other approaches to fixing it. USPTO has other experiments in the works, including a new website (now online at beta.uspto.gov) with a streamlined filing system at its core.

One argument is that it's still too early to judge. Peer-to-Patent actually got a second lease on life, picked up by USPTO after its initial one-year pilot run. It's been largely student-run during that time. One metric is how popular the system proved the patent applicants and volunteer examiners. In its two-year life thus far, 2,600 people registered on the site as patent reviewers. More than 180 applications were vetted -- half of the upper limit of 400 set up the project. The project offers advantages to small and independent patent applicants that hope that well-vetted patents will save them the trouble of legal challenges down the road, but some 109 of those applications came from six major firms like GE, IBM, and HP, rather than small inventors. Another metric: how the project sped up the approval process and produced more solid patents. The report finds that 69% of 54 USPTO patent examiners surveyed said that they think peer reviewing is beneficial to the patent process; twelve percent said that the prior art they got through Peer-to-Patent wasn't otherwise accessible to them. In a USPTO survey, 59% of 26 examiners asked said that Peer-to-Patent was helpful in their work.

At an event in New York this week to discuss her book, Noveck said that she was hopeful that David Kappos, the White House's nominee to head the U.S. Patent and Trademark Office and a Peer-to-Patent advocate, would see merit in keeping a peer-review project alive. Kappos was nominated to head USPTO in late June, but his appointment requires Senate confirmation and likely won't happen until at least the fall.

That said, Peer-to-Patent got its start outside government and might find its future there as well. The team behind the site has launched Post Issue, a community-vetting site for reviewing already-approved patents in the hopes of "ferreting out weak, non-meritorious patent claims."