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?

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:Uh Oh! Tax dollar Sinkhole?

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.

Re:Uh Oh! Tax dollar Sinkhole?

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.)

Blogs are the New Media

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.

Re:Blogs are the New Media

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?

Expecting any replies along the lines of...?

Oh, really?

Questions...

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?

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

PR is just modern-day propaganda

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?

Not really

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

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.

Red flag phrases

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!

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' monopoly on one invention, they also lock out his access to 10 million others. Thanks for nothing, and then people wonder why the only inventors left are rogue individual tinkerers who don't collaberate with anyone else. And then they wonder why the cost of R&D explodes thru the roof under a patent system.

I hope people understand that in a world without patents, the market would center arround invention related services. But with patents, the market centers arround invention related controls. FYI, laywers, government, and large conglomerates are good at controling things, inventors are good at inventing things. Only a fool would think inventors benefit the most from a patent system.

Patents are worse than a false peoperty right, they held back inventions like air bags, and anti lock breaks for 20 years while countless thousands died. They are responsible for millions of Africans dying from AIDS being deprived of generic medications (people who tried were sued in the world cort). They are responsible for millions of medicaitons with bizare chemichal side effects being forced on us while natural remedies are regulated and driven out of the market. The fact that every industry has incompatable parts, and the huge environmental waste that comes from that is not a normal market event, but specifically caused by patetns. They lock out millions of inventions that are natural progressions, and would have been invented anyhow. If you want to see what happens to an industry when patents fail, all you need to do is look at the IBM compatable PC and how when IBM and Intel lost their lawsuits over controlling the interface, a nuclear explosion of business and creativity happened in the PC industry. Patents are worse than a hinderance, they are genocidal.

weasel word alert

'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

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 by Open Source.

The problem with Open Source and patents is that we are disinterested in patents. We have no intention of applying for patents for Open Source software. Applying for software patents is expensive and we have no intention of blocking other people from using our ideas. Similarly we have no interest in watching the parade of new software patent proposals to call foul on the proposed software patents which have prior art. We detest software patent lawsuits and do not want to participate on either side of a software patent lawsuit. However a software patent lawsuit can get us riled up enough to do the work of finding prior art to invalidate the software patent in question.

Our attitude of ignoring and failing to document patentable software causes the Patent Office and patent lawyers a lot of problems. They cannot issue patents for which there is prior art even if the prior art is not patented. Finding undocumented prior art is a monumental problem for the Patent Office and they do a poor job of it. The patent lawyers have responded by trying to get bad patents declared still valid when unpatented prior art is discovered. Two examples are "first to file" and the "obviousness" patent case now before the Supreme Court.

While I think that Beth Noveck's work is all well and good and applicable to all patent fields I think that Open Source would be better off to spent our efforts in trying to abolish software patents once and for all. That would be easier than perpetually being forced to fight a series of software patent lawsuits.

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Steve Stites