Peer-to-Patent allows public to find prior art

Grant Gross
PC World
Saturday, June 23, 2007; 12:32 AM

U.S. technology vendors submitted five patent applications for last Friday's launch of a Web site that allows the public to review proposals before patents are granted. Less than a week later, the public had submitted claims of previous inventions that could invalidate each one.

The prior art submissions may not pan out, but if they do, that's OK with the technology vendors. Prior art refers to existing inventions.

"It's not a negative if we don't get a patent that we don't deserve," said Manny Schecter, associate general counsel for IBM Corp., an early supporter of the Peer-to-Patent project. "We don't want to have a false sense of security that we have a valuable asset that we don't really have."

Peer-to-Patent's exposure of prior art will weed out patents that would likely face challenges down the line, added Curt Rose, associate general counsel for Hewlett-Packard Co. "We don't want to get patents issued that aren't valid," he said. "That's just a waste of time and money and resources for us and everybody else."

Peer-to-Patent is a year-long pilot program offered through the U.S. Patent and Trademark Office (USPTO) and New York Law School's Institute for Information Law and Policy. The pilot, which covers patent applications for computer architecture, software and information security, launched June 15 with the support of several tech vendors. IBM, HP, Intel Corp. and Red Hat Inc. each submitted patent applications to help launch the program.

The program has multiple goals, chief among them to weed out invalid patents, said Beth Noveck, a professor at the New York Law School who originally proposed the program in July 2005. Many tech vendors have pushed Congress to fix what they see as a broken patent system, and one of the biggest concerns is that overworked USPTO examiners grant too many undeserving patents.

One goal is to "improve the quality of patents by providing the patent office with more and better information about inventions for which applications are filed," Noveck said. "We want to prevent the issuance of undeserving patent claims."

Another goal is to make USPTO "more accountable and transparent to the technology community," she added.

Supporters of Peer-to-Patent may be the first example of social networking being used in a government application.

"It brings the strength of the community to the patent examination process," said HP's Rose. "So the examiners can make the best examination they can, which ultimately results in better patents."

In the first week, IBM's patent application in the pilot, called "database staging area read-through or forced flush with dirty notification," has generated four claims of prior art as well as some discussion on a message board attached to the application.

Peer-to-Patent allows the public to discuss patent applications and upload examples of prior art. Then, members of the site select the top examples of prior art for each patent application and the top 10 are forwarded to USPTO.

One advantage for companies using the pilot is that they will have their patents reviewed within a year, instead of the traditional four-year waiting period. Under Noveck's original proposal, inventors who decided not to use the Peer-to-Patent review would get patents that were valid for a shorter length of time than those who used Peer-to-Patent, but that's not part of the pilot.

The pilot has gained praise from some members of the open-source software community, in addition to large tech vendors. Bad patents hurt open-source and free software projects partly because those projects often aren't part of prior art searches at the USPTO, said Pamela Jones, founder and editor of Groklaw, a Web site focused on open-source and free software legal issues.

No open-source and free software prior art database exists, and it's now nearly impossible to write major new software packages without getting into a patent dispute, Jones said on a video on the Peer-to-Patent site.

"I think of this project as spraying insecticide on stupid patents before they can multiply," Jones added. "And your knowledge of prior art is the bug spray."

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