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July 7, 2008

Peer-to-Petering Out

Peer-to-Patent declared itself a success in its First Anniversary Report. Self flattery had patent blogger praise piled on. The hoopla is not entirely unmerited. What a great concept: the patent community contributing back to the patent system, examination quality improving with an influx of peer-cited art, and pendency decreasing without the PTO lifting a finger. Sounds like a win-win-win. Too bad we don't all live in Tuvalu, where scalability would not be an issue.

U.S. patent rights are the most sought after in the world. The Peer-to-Patent pilot consisted of less than 50 patents. It would need to scale to more than 100 or even 1000 times its current size to have much relevance or effect.

Expecting Peer-to-Patent to scale to production mode may be overly optimistic.

According to the press release, peer-reviewers on average spent six hours reviewing each application in the pilot. This is fine for a limited number of applications, but what happens when thousands of applications are pending under a peer review program? Only a finite number of reviewers will ever volunteer. Human resources are relatively limited. The U.S. isn't manpower-happy China. Additionally, for those patriots who do continue to volunteer for a while, the novelty will soon be lost, and their time will divert back to other distractions.

What effect would Peer-to-Patent en masse have on examiners? Peer-cited references might give examiners an easy out, and if the art is good, a boon. But systemic peer review is unlikely to bear as much fruit as the pilot.

Examiners, always facing production pressure, economize effort. That is simply the nature of being a wage slave. With repeated spoon feeding, a peer system could act as a disincentive to examiners to perform thorough searches, especially in non-patent literature, where peer review may be stronger, but which is not as easily searched by examiners as patents. This could lead to examiners less knowledgeable in their field, since, currently, the majority of examiner technical knowledge sprouts from countless hours of weeding prior art. The outgrowth of a peer system could be less knowledgeable examiners less inclined to independent search, a sort of examination welfare state. While examination peer-reviewed patents may nominally improve, the quality of applications not peer-reviewed may suffer from instituting a widespread peer review system.

Although a fresh and fashionable Peer-to-Patent may look good on the runway, it is unlikely to wear well in the office.

Some of the praise from the press release:

Data from the first year of the Peer-to-Patent pilot shows that an open network of reviewers can improve the quality of information available to patent examiners and that such citizen-reviewers are capable of producing information relevant to the patent examination process and are willing to volunteer time. Initial results based on a survey of patent examiners from the USPTO suggest that information provided by the public is beneficial to the examination process.

Findings from the first-year report include:

  • Peer-to-Patent attracted more than 2,000 peer reviewers.
  • The first 23 office actions issued during the pilot phase showed use of Peer-to-Patent submitted prior art in nine rejections.
  • On average, citizen-reviewers contributed 6 hours reviewing each patent application in the pilot.
  • Although USPTO rules permit third-party prior art submissions on pending applications, the average number of prior art submissions on Peer-to-Patent applications was 2,000 times that of standard rule-based submissions.
  • Ninety-two percent of patent examiners surveyed said they would welcome examining another application with public participation, while 73% of participating examiners want to see Peer-to-Patent implemented as a regular office practice.
  • 21% of participating examiners stated that prior art submitted by the Peer-to-Patent community was "inaccessible" directly to USPTO examiners.

Prior art submissions by Peer-to-Patent reviewers were four times as likely to include non-patent literature (any document that is not a patent, including Web sites, journals, textbooks, and databases) as compared to prior art submissions by applicants.

"As the first example of harnessing public knowledge to improve a government process, the first year of Peer-to-Patent was an unquestioned success," Noveck said. She added: "While the impact of this project on patent quality will take longer to assess, the early indications are certainly promising."

Other coverage: Peer-to-Patent Report; Patently-O; Hal Wegner.

Posted by Mr. Platinum at July 7, 2008 10:47 PM | The Patent Office


Note a post on IPBiz on July 1 which included:

Also note: As with Wikipedia, where the visitor count far exceeds the number of editors who actually write the encyclopedia entries, only 365 (18 percent) of the 2,000 peer reviewers who have registered on the Peer-to-Patent Web site are considered to be “active” participants who did the work of submitting prior art in connection with the public review of the first 40 applications. (...) Of the 365, 104 came from IBM (...) The survey results indicated that all (100 percent) of the participants found the application understandable or easier than most patent applications. The applications were not difficult to read or understand.

Posted by: Lawrence B. Ebert at July 8, 2008 2:00 PM