The US patent system is supposed to ensure that the latest wireless email technique or crustless peanut-butter sandwich granted protection is truly one of a kind.
But even the US Patent and Trademark Office acknowledged recently that such judgments are no small feat. In a draft five-year strategic plan released last week, officials solidified their intention to develop a "peer review mechanism" that would enlist volunteers from the public to weigh in on applications and ease the burden on its own staff.
Responding to that call for collaboration, a patent attorney and an accountant based in Salt Lake City on Monday launched WikiPatents.com. Sporting a star-based rating system reminiscent of those used for movie criticism, it's designed in part to help patent examiners, attorneys, litigants, would-be investors, inventors and other interested outsiders decide whether already-issued patents deserve such a designation.
Searching for a particular patent number returns a page that allows users to, among other things, rewrite a patent's description in laypersons' terms, rate the technical accuracy of a patent, vote on a reasonable royalty value, and divulge information about its availability for licensing. Eventually, such commentary will extend to pending patent applications as well.
Each dedicated patent page also allows users to nominate and describe the pieces of prior art that they feel are most relevant to the patent in question. Prior art consists of all previously available public information related to a present invention, such as academic literature and other published patents, and is a key consideration in determining a patent's value — and its patentability in the first place.
The hope is that those tasked with re-examining patents, or potential litigants looking for ammunition to invalidate current ones, can use the rating system to focus their work and to spot once-overlooked documentation, said Peter Johnson, who co-founded WikiPatents.
"They're not just finding a stack of prior art, they're finding the needle in the haystack that the public thinks is the most relevant patent," Johnson, a patent attorney located in Utah, said in a telephone interview.
Patent Office representatives have responded positively to the site, Johnson said. The office itself was unable to respond to requests for comment by ZDNet UK’s sister site, CNET News.com, on Monday.
Large in ambition and scope
WikiPatents is not the first site to take aim at what some deem an epidemic of undeserving patents, although with its more than 3 million patent listings and more to come, it appears to be the most ambitious. The open source software community, which has sounded alarms in recent years over what it calls a rash of "bad patents", has also devised systems aimed at allowing the public to view patent applications and prior art more readily.
The latest addition won't be the last wiki-style site to enter the patent sphere, either. IBM, Red Hat, Microsoft and HP signed on as backers of a New York Law School venture called Community Patent Review. That project, scheduled for a pilot rollout in January 2007, will allow the public to comment on patent applications and rank one anothers' comments for quality, said Beth Noveck, the law school professor who hatched the idea about a year ago.
"Our goal is really to change the way legal decision making is [done] in the first place and to limit the issuance of bad patents and low-quality patents... by ensuring there's better information available to the patent examiner," Noveck said in a telephone interview. She said her project would view sites such as WikiPatents.com not as rivals but as potential collaborators working toward the same objectives.
How the Community Patent Review and similar projects will figure in the patent examination process remains less clear.
Right now, patent law gives those involved in the patent process a "duty of candor" to share information about prior art, but only if they know about it. There's no obligation to affirmatively go out and search for prior art, Noveck said. Independent inventors worry that if the public wiki sites take off, the standard could change--and at their expense.
"I think what will happen is that if this succeeds, that there will be a presumption in the courts that you should've gone and waded through all of this," Ron Riley, president of the Professional Inventors Alliance, which represents small and independent inventors, said in a telephone interview. That additional burden on inventors would inevitably cause their legal costs to rise and could crush start-ups, he said.
That's certainly not the intention, Noveck said. "What it does is it spreads the burden more widely, and it helps to alleviate the burden on the USPTO," she said, citing a backlog of nearly a million unprocessed patent applications.
But what about the inevitable concern that such sites will fall prey to the sort of tomfoolery that has plagued postings at the Web's best-known wiki site?
"As long as prior art is put into the system where it's readily available to search ahead of (filing for a patent), and it's properly vetted, it's not every harebrained thing somebody throws out, then I think that's great," Riley said. "But I've looked at Wikipedia, and it's a real mixed bag."
WikiPatents, for one, said it will attempt to weed out spam and abusive comments, but the reliability of its content remains a use-at-your-own-risk proposition.
"Even though a reference may have been voted to the top by 10 users as a five-star reference, the patent examiner ultimately has to determine whether it's a five-star reference for him," Johnson said. "The same thing goes for licensees, applicants and litigants."
