Patent Review via Community Not Wiki-based

Moe Napoli writes "Articles have recently surfaced (CNET/ZDnet, Fortune and a mention here at Slashdot) incorrectly identifying the recent USPTO pilot Community Patent Review program to be Wiki-based. While a number of Slashdotters have identified why such an approach would create more problems than solve, the program's architect, NYLS Prof. Beth Noveck, continues the discussion and further clarifies why the program is not Wiki-based, yet 'conveys the appropriate sense of openness, transparency and collaboration.'"

Uh Oh! Tax dollar Sinkhole?

[eldavojohn (898314)]

I read the brief article clarifying this not-a-wiki initiative but what concerned me was when I read The Five Year Plan [uspto.gov] that was linked on the site to the USPTO.

The outline of the goals:

• Goal 1 Optimize Patent Quality and Timeliness
• Goal 2 Optimize Trademark Quality and Timeliness
• Goal 3 Improve Intellectual Property Protection and Enforcement Domestically and Abroad
• Management Goal Achieve Organizational Excellence

I recognize phrases and words that alarm me in that this document really doesn't say much or provide a 'plan' at all. For instance, its first goal is to "Optimize Patent Quality and Timeliness" which sounds like a great idea. But if you dig through the document to figure out how they will achieve this, there is naught to be found but:

Strategically, USPTO's primary emphasis is quality. For patents and trademarks, quality means timely, consistent, accurate examination. How do we achieve timely, consistent, accurate examination? Via streamlined procedures, good inputs, and great people.

Which worries me because the only quantifiable thing listed there is 'streamlined procedures' and I would prefer you aim for an intuitive & rigorous control process instead of using a bland word like streamlined. I mean, how can you determine if something really is streamlined?

Also confusing:

The formula for Certainty includes good communications so that we have consistency. It includes a capable workforce so that we have accuracy. It includes fully integrated supporting systems and uniform data to ensure reliability.

A capable workforce -- our employees -- is the single most critical component to achieving our goals.

So there's not really going to be any new tools or procedures but instead it's the 'mythical man month' approach where you just throw more people at the problem until it goes away? How do you determine a 'capable employee' and shouldn't those be the only kind you hire anyway?

Indeed the primary goal of this paper is to convince the reader that patent/trademark applications are one the rise. Unfortunately the one solution they have for that is hiring more examiners and creating focus groups. Is this really the solution?

They list search technology as an increasingly useful tool but why not data mining? I mean, you would think that the primary concern is to make this as simple as possible for the patent examiners and give them cutting edge technology to cross-reference patents. I think the most useful tool would be a thesaurus and/or a taxonomy that could allow them to link key words and identify possible prior art that a traditional search would have missed.

You know, the alternative to hiring more patent examiners is to make the grounds for a patent more stringent. Then a lot of the 'maybes' could be thrown out. In the end, I'm afraid this is just another government office or agency that's going to balloon out of control and consume tax payer dollars.

Re:

[legoburner (702695)]

How do you determine a 'capable employee' and shouldn't those be the only kind you hire anyway?

Well since Einstein worked at the swiss patent office, perhaps they should ask about the potential employee's theory of relativity (or even their unified field theory). That will sort the wheat from the chaff!

Re:

[chrismcdirty (677039)]

We all know that Einstein didn't really come up with the theory of relativity [slashdot.org].

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[Nuskrad (740518)]

Einstein didn't come up with the theory of relativity, Gallileo did. Einstein developed the Special and General theories of relativity. Stephen Fry said so!

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[davetv (897037)]

I am primarily an applications engineer and consultant. I go to meetings with business "execs" daily. Its funny to sit there and throw the buzzwords at them and get the nods. You hit it right on the nose.

Re:Uh Oh! Tax dollar Sinkhole?

[mavenguy (126559)]

Ehhh, another /. patent article just as I step out for most of the day.

Just a quick comment, based on what a friend and ex-colleague who keeps me up to date with what's going on in the PTO.... a lot of the "quality" initiatives involve lots and lots of "review" by others, other examiners, quality review, etc. The problem with this boils down to whether the reviewer has the same or better working knowlege of the art (i. e. technology) of the application under review. How does one expect such a reviewer to be able to generate better prior art than the examiner who works daily in art? Also, one not knowledgable about the art can misinterpret/misunderstand terminology, and often will think they have a great reference that superficially is great prior art, but really is is irrelevant, wasting time in arguments back and forth. This is like quickly hacking out code and then trying to get it working by bug fixing, a very inefficient process.

The streamlining aspects are just management code-speak for speeding up the assembly line, reducing the amount of time an examiner spends on an application, etc, which has been the real focus of management efforts over the past 30 or more years; it's a hard culture for management to abandon.

So you end up with the worst of all worlds: A system with strict production controls with an add-on review system that just harasses examiners without actually enhancing quality.

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[LaughingCoder (914424)]

Then a lot of the 'maybes' could be thrown out.

I think you have nailed it here. The problem is the huge number of *suspect* patents. And the primary cause of these patents is the tremendous number of filings, compounded with their increasing complexity.

Personally, I think we need a fundamental change in the patent system. It is simply too difficult to provide a gate-keeping function. The quality of the screening inevitably becomes less and less accurate and effective over time. Instead, what if compan

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[LaughingCoder (914424)]

Actually I am not a lawyer, and I don't even play one on TV.

Seriously, this is not really any different that what we have today. The "screening" is already terribly ineffective, so in the end both sides "lawyer up" and hash it out, first lawyer-to-lawyer, and then if that fails, in court. The fact that the patent was granted is not all that meaningful, since prior art very often is unearthed, retroactively rendering the patent invalid. Another common result of patent disputes is to argue the interpretati

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[joebob2000 (840395)]

Maybe even more fundamentally, maybe we can do away with the patent system altogether?

The rhetoric is that in exchange for divulging a novel invention to the world, one is granted a temporary monopoly on that invention. Others can see the published patents, build off them and thereby speed the rate of industrial progress.

Leaving aside the many patents that are prior art, there is another issue. Patent submitters routinely attempt to game the patent system by having the claims be as broad as possible whi

Re:Uh Oh! Tax dollar Sinkhole?

[thebdj (768618)]

Psst. The USPTO is one of the few, if not only, government office that, get this, MAKE MONEY. All the money funding the PTO comes from fees collected by the PTO. Actually, Congress doles out only part of those fees back to the PTO and spends the money for other agencies. The freeing of this fund solely to the PTO has been a point of contention in the past, since the PTO obviously needs more money.

So do not worry. Your money does not currently and probably never will fund the US Patent and Trademark Office. (As for my credentials, I was a patent examiner. So I think I can provide some insight in this matter.)

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[inKubus (199753)]

So what you're saying is if I FILED [uspto.gov] enough patents (whether I got them or not), I'll increase the funding of a government institution enough to maybe get some influence there (by paying the filing fees)?

our tax dollars

[joebob2000 (840395)]

You objected to the grandparent believing "our tax dollars" fund the USPTO. I agree that the common usage of "our tax dollars" usually refers to the income tax, which does not fund the USPTO. On the other hand, the patent process ultimately represents a tax, a "competitive monopoly tax". The tax is payed by corporations, who will then pass on the cost to the general public. So in the end, the public ends up funding the USPTO. The fact that income from the USPTO is diverted to other government programs more

Re:

[TheOnyxRocket (921830)]

In the end, I'm afraid this is just another government office or agency that's going to balloon out of control and consume tax payer dollars.

That's not likely. The U.S. Patent Office charges fees for all of the work it does. It's required to charge enough to meet all of its expected expenses, including the cost of additional examiners and improvements it thinks it needs. However, Congress also limits what it's allowed to spend and keeps the difference, so the Patent Office can't make the improvements th

Blogs are the New Media

[BadAnalogyGuy (945258)]

Not a single non-blog link in the writeup! I get the feeling sometimes that "Old Media" is getting pushed aside and this sort of "individual-driven" New Media is taking its place.

Anyway, about the topic. It seems like a lot more trouble than it's worth to ask the general public to review patents. Especially when patents are in their review stages, they are especially vulnerable to getting ripped off. Opening up the process to outsiders only makes this vulnerability more obvious and dangerous.

Like what has happened in the music industry, once the cat is out of the bag, it's impossible to put that genie back in the bottle.

More likely than not, this experiment will wither on the vine and we won't hear much more about it until Slashdot posts a link to the blog that explains why the "community patent review process" failed miserably.

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[MindStalker (22827)]

Actually the entire point of the patent process initially was that you choose to tradeoff giving up your knowledge to the public, for the government protection of that knowledge used in a commerical invention for X years. Of course people will try to rip it off if its posted publically but that half the point, they can't bring anything to market without your permissions. Sure someone could bring something to market that was only sold in their local town and maybe stay under your radar, but they really arn

Re:Blogs are the New Media

[BadAnalogyGuy (945258)]

So you're saying that you're giving patent veto power to the same person who wants to rip you off, and that is a good idea?

Am I missing the subtle logic here?

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[MindStalker (22827)]

Oh comeon, ultimatly its the patent office that has veto power. If the guy whos trying to rip you off can make a logical argument to the patent office, yes he should have every right to try to make his argument. Sure there is a conflict of intrest, and it will be interesting to see if the patent examiners can make a neutral decision that takes in all the fact, or if they are overwhelmed with information and thus kills the process. But saying the public has veto power is simply trolling at best.

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[BadAnalogyGuy (945258)]

I see. And the reason we have this community process in place is because we trust the USPTO to do their jobs correctly in the first place?

I'm sincerely not trolling, I'm just trying to figure out how you are coming to your conclusions.

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[MindStalker (22827)]

Well I guess its the lesser of two evils.
You can either let the patent office continue in its current form, which is essentially to grant each and every patent that comes across their desk.
Or you can let the public comment on the patent having some hope this comment will inform the patent examiner of prior art.

Sure there are problems to the system, but if you receive your patent you will still get protection if you didn't either you didn't deserve it or the patent examiner made a mistake. Currently the mis

Expecting any replies along the lines of...?

[tygerstripes (832644)]

Oh, really?

Questions...

[by Anonymous Coward]

Where do we post our review of every software, logic and business method patent ever granted by the USPTO? How much are they paying us to do the job USPTO examiners are incapable of doing themselves?

Not a wiki?

[$RANDOMLUSER (804576)]

Oh well, back to the old dart^Wdrawing board.

PR is just modern-day propaganda

[bbtom (581232)]

It 'conveys the appropriate sense of openness, transparency and collaboration.'?

So is it actually open, transparent and collaborative, or does it just convey the appropriate sense?

Re:

[dthomas731 (761616)]

It has all the right words but only time will tell. With companies such as Microsoft getting involved, how can the process be trusted? When was the last time Microsoft, HP, or Red Hat for that matter put the public's interest ahead of profits?

Is this a situation were large corporations AND the little guy win? I don't think so!

Not really

[Dachannien (617929)]

Noveck clarifies that the program is not wiki-based, but provides no explanation as to why it is not. The nature of her response, "This is not a Wikipedia for patents," makes it sound as though she doesn't understand what the wiki concept is beyond its specific application to Wikipedia. Maybe she does "get it", but for now, her response needs more clarification.

Wiki

[ms1234 (211056)]

Wiki is nice but a hammer is not always the best tool even though when you have a hammer everything seems to be solvable by using the hammer :) So I don't really see the point of this OMFG NO WIKI discussion.

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[CmSpuD (995334)]

If you can't fix everything with your hammer, it isn't big enough.

Red flag phrases

[russotto (537200)]

The program 'conveys the appropriate sense of openness, transparency and collaboration.'. That sort of phrasing in bureaucrat-speak generally implies "...without actually providing those attributes."

Yeah, but it's the WRONG goal!

[argoff (142580)]

If you mugged people in secret, the solution is not to change your ways to 'conveys the appropriate sense of openness, transparency and collaboration.', the solution is to stop mugging people. Well, the same is true with patents. The solution is not to make them more open and transparent (BTW when government says that, it means the opposite will happen), the solution is to get rid of patents or do as much as possible to go in that direction.

Patents are a fraud, by giving an inventor a 'protective' monopol

weasel word alert

[oohshiny (998054)]

'conveys the appropriate sense of openness, transparency and collaboration.'

"Appropriate" is one of the top weasel words. For example, in this context, it could easily mean "it is appropriate for the patent process to be closed, non-transparent, and uncollaborative, so hell will freeze over before we'll do anything to change that".

Everybody but Open Source

[stites (993570)]

I attended a meeting at the U.S. Patent Office where people presented a series of proposed changes to reform the patent system. Of the various proposals I thought that the one by Beth Noveck was by far the best. I posted comments on the Internet supporting Beth Noveck's proposals.

After further reflection I have a more complicated view of the proposed patent reforms. I think that the reforms are good across all patentable fields but that they will do the least good with the software patent problems faced