Hogge's reference point is the pilot project Peer to Patent, a fledgling targeting of software patent applications requested by the applicant for public prior art search. The public prior art scold occurs before prosecution, with the top ten references peer voted for submission to the patent examiner; sort of an American Idol in reverse for whacking patents. A political toad, the USPTO has bought into the scheme because it is sponsored by major corporations like General Electric, IBM, Hewlett Packard and other behemoth corporations.

Hogge:

The slippery slope is at least twofold and concerns letting the public in on the process and heaping more work on the examiners.

The slippery slope with respect to public oversight is real... Patent prosecution is an arcane area that takes a great deal of effort and training to learn the rules, e.g., two years of full-time effort.

The slippery slope for examiner workload is probably illusory. Examiners are experts in their art units and in researching prior art in their art units. They can look at and assess 10 references in a relatively short period of time. The time it takes a patent examiner to review 10 pieces of prior art is negligible.

Hogge exaggerates. A top-notch prior art analyst can dispense 10 worthless prior art references in no time, but a good reference takes time to review with some care. As to examiners being experts, that extends only to the competent ones, at best something north of a slim majority. An embarrassing minority of software examiners don't, by their office actions, elicit an understanding of claimed inventions and/or the relevancy of prior art. There seems to be a relation to technical acumen with how noticeably English is a second language. There are a lot of immigrant patent examiners. That said, on average, an input of 10 prior art references at worst can be considered a little bang for the buck.

On the fundamental reason for this whole exercise, Hogge hits home while revealing his age at 217.

Justification for helping the patent office has its usual suspects, e.g., application backlog, not enough patent examiners, too many invalid patents, etc. These complaints have achieved talismanic status due to their constant repetition since 1790. Let us not forget that the patent office is a profit center for the government and more patents means more money.

Hogge gives credence to some examiners needing an assist.

Notwithstanding the usual complaints, the USPTO now seems to recognize that, at least with respect to software, it could use a little help in accessing sources of prior art. Search software prior art is considered, at least by some, to be relatively difficult.

The difficulty of quality search in the most complex computer-oriented technologies is a sine qua non reason that Patent Hawk has a thriving practice, with a repeat client base.

Let us not kid ourselves about the curative effect of the p2p project. The notion that this project or anything like it will decrease the issuance of invalid patents is erroneous, and must be rejected. Such a notion is naive at best.

The intent behind the p2p project is noble, but it may very well be overstated. The current system at the USPTO has worked well. There are many instances where patents issued in the ordinary course from the USPTO have been subjected to the highest level of examination imaginable in court and come out of that crucible unscathed.

In a sidebar, Hogge puts a dig in on the courts not comprehending patent law, most especially the Supreme Court.

[M]any people who read KSR International Co. v. Teleflex Inc., 127 S.Ct. 1727, 1743 (2007),  will wonder why the "teaching away" evidence did not get into the record before the trial court, or why the Supreme Court applied the "preponderance of evidence" standard instead of the correct "clear and convincing" standard required for invalidity analysis. ("If a person or ordinary skill can implement a predictable variation, §103 likely bars its patentability." Id. at 1740.)

A patent is presumed valid by law, thus invalidating one necessarily requires "clear and convincing" evidence; that is what the presumption of validity means. Instead, the Supreme Court defied the law, not giving patents presumption of validity, by lowering the burden of proof, ruling that a patent can be killed by probability, a mere "preponderance of evidence."