Peer-To-Patent Quietly Shuts Down
from the and-no-one-notices... dept
While I'm certainly a big fan of involving more people in the process of reviewing patents, I've been a huge skeptic of the "Peer-to-Patent" program that the USPTO tested over the past few years. As I noted earlier, there's very little incentive for most people to actually get involved in peer reviewing a patent that early on. It's only much later when the patent actually becomes an issue (i.e., someone is asserting it somehow) that it really becomes an issue (especially when they're claiming it covers something that appears to be totally unrelated). However, there were many who promoted peer-to-patent as some sort of savior of the patent system.And yet... the entire program apparently shut down last month and almost no one noticed (thanks to Eric Goldman for sending this over). They claim that the program is being "reviewed," but no more patents are being accepted into the program, and the few that are already in are expected to be finished in the next few months.
Again, having multiple people look in on patents is a good idea, but the setup of this particular program was incredibly flawed from the very start. There wasn't much incentive to participate from either end, and so the program didn't go very far or come up with very much useful. Also, it focused too much on "prior art" as an indicator of "obviousness" when the two are separate things (though, they may be related). It's great that the USPTO was open to experiments on improving patent quality, but this one never seemed to have much going for it.
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Filed Under: obviousness, patents, peer to patent, prior art
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agreed
Meanwhile, it's not like we could point out patents which needed review, so that wasn't very helpful either.
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Re: agreed
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Crowd Sourcing!!
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Re: Crowd Sourcing!!
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Just kidding
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from the "glad Masnick isn't a patent lawyer" department...
What else, other than prior art, would you use as an indicator of obviousness? That's simply what anything (articles, patents, books, software, etc.) that predates a patent application is called. Maybe separate things etymologically, but inseparable when it comes to the review of patents. Likewise, prior art could be used to attack the novelty of a patent application.
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Re: from the "glad Masnick isn't a patent lawyer" department...
The knowledge of a person who is skilled in the art...
The patent act calls for patents to be both new and non-obvious. Prior art is for new. Skilled person is for obviousness...
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Re: Re: from the "glad Masnick isn't a patent lawyer" department...
Legally, you are wrong. "Non-obvious" has historically been defined as either not having been shown in a single piece of prior art (anticipation), or not shown by a combination of two pieces of prior art. Graham V. John Deere set out the queries necessary to determine obviousness.
(1) the scope and content of the prior art;
(2) the level of ordinary skill in the art;
(3) the differences between the claimed invention and the prior art; and
(4) objective evidence of nonobviousness.
You will note that prior art is the heart of two of the four factors required by Graham.
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Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
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Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
I think "skill" in the art should be considered, but care must be taken that the "skill" is truly application of ordinary engineering skill and not hindsight. Many things appear "obvious" once they are invited, but without having the solution to guide you, just how obvious is the solution?
I recently saw a rejection that was based only on "ordinary skill," which I found amusing, but I was unable to judge as to how much "ordinary skill" was required (not my field of knowledge). I kind of stumbled on this rejection, so I doubt I will follow it, but it would be interesting to see whether the examiner sticks to a rejection not supported by prior art.
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Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
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Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
and are you somehow better at being able to assess what constitutes obviousness than anyone else? Is your intuition better than that of others? If the intuition of others says that something was obvious, and that hindsight has nothing to do with it, what makes your intuition so superior to that of others to determine otherwise? Are you saying that people are somehow fundamentally unable to asses whether or not a solution is only obvious in hindsight? Can you substantiate your claim?
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Re: Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
No one is entitled to having any government giving them a monopoly. and if it's true that we somehow really can't evaluate the validity of a patent then how do we even evaluate the alleged positive or negative impact of patents and how much progress they allegedly promote? Maybe every innovation will occur just fine without patents. On the other hand, as anyone who has taken an econ 101 course knows, government imposed monopolies are known to cause economic harm and they do impede on my rights. Lets abolish them. Otherwise, if you want a patent to exist, the burden is on you to prove it is necessary, not on me to prove that it's not. and to do that, you need to come up with a reasonable evaluation methodology that goes well beyond simply looking at prior art.
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Re: Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
The point is that obviousness, novelty, and the presence of a "person skilled in the art" (part of the statutory definition of obviousness) is demonstrated using prior art. "Prior art" is the general term that applies to ALL evidence of novelty or obviousness, i.e. prior art is evidence of the existence of a person having ordinary skill in the art, thus demonstrating that the patent is obvious. Or, prior art is used to demonstrate the lack of novelty. The rejection you saw based on "ordinary skill" had to have been based on a particular piece of evidence, aka prior art. An examiner cannot just say "someone has this skill in the art". They need to point to some evidence. That evidence is called prior art.
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Peer-to-Patent has not shut down
Mark Webbink
New York Law School
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patent attorney?
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Re: patent attorney?
Are you an economist? Have you ever passed an economics course? If not, kindly keep your unqualified thoughts to yourself.
See how simple that is? See how silly that is? I'm not being serious, I'm just pointing out how ridiculous your statement is. Patents are supposed to improve the economy. Patent attorneys get rich off the system and should be the last people expected to give an unbiased opinion of how well it's been working.
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http://www.peertopatent.org/ is useable
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