Peer-To-Patent Quietly Shuts Down

from the and-no-one-notices... dept

Fri, Jul 10th 2009 7:11am — Mike Masnick

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

18 Comments

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Designerfx (profile), 10 Jul 2009 @ 7:17am

agreed
Peer2Patent was horribly designed. The interface was not very friendly, and the general issues are not resolved by simply trying to oursource patents.

Meanwhile, it's not like we could point out patents which needed review, so that wasn't very helpful either.
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:Lobo Santo (profile), 10 Jul 2009 @ 7:46am

Crowd Sourcing!!
If only the USPTO would spend a few thousand of its wasted funds on a well designed website which says "Put up or shut up" and all of us who see bad/obvious patents could point them out.
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just this guy, 10 Jul 2009 @ 8:13am

Just kidding
Someone got a Patent on Peer2Patent and threatened to sue, so they had to shut it down.
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Anonymous Coward, 10 Jul 2009 @ 10:16am

Re: Crowd Sourcing!!
One of the patent reform proposals is to accept comments on an issued patent for a year after issuance, and to then take the comments that appeared well-supported and re-examine those patents that get comments.
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Anonymous Coward, 10 Jul 2009 @ 10:17am

Re: agreed
You can still comment on specific U.S. patents and applications at patentfizz.com.
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creating confusion, 10 Jul 2009 @ 10:18am

from the "glad Masnick isn't a patent lawyer" department...
"Also, it focused too much on "prior art" as an indicator of "obviousness" when the two are separate things (though, they may be related)."

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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Mike Masnick (profile), 10 Jul 2009 @ 11:05am

Re: from the "glad Masnick isn't a patent lawyer" department...
What else, other than prior art, would you use as an indicator of obviousness?

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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Anonymous Coward, 10 Jul 2009 @ 11:39am

Re: Re: from the "glad Masnick isn't a patent lawyer" department...
Mike:

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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Mike Masnick (profile), 10 Jul 2009 @ 12:32pm

Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
I know. I'm talking about what it should be. The fact that obviousness has been subsumed into prior art is a huge problem with the system.
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Anonymous Coward, 10 Jul 2009 @ 1:21pm

Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
Mike:

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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Anonymous Coward, 10 Jul 2009 @ 2:07pm

Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
Invented...not invited...grrr.
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creating confusion, 10 Jul 2009 @ 3:09pm

Re: Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
Mike,

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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Mark Webbink (profile), 11 Jul 2009 @ 4:36am

Peer-to-Patent has not shut down
Some interesting comments above, but the gross inaccuracy is in the headline and story. Peer-to-Patent has not shut down. It is still operating. The only thing that has occurred is that the USPTO has decided to suspend and new applications until they have an opportunity to assess the effectiveness of the program. Meanwhile, Peer-to-Patent still has 70+ pending patent applications under review. Come on over and check it out.

Mark Webbink
New York Law School
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staff1, 11 Jul 2009 @ 8:58am

patent attorney?
Are you a patent attorney? Have you ever prosecuted a patent application? If not, kindly keep your unqualified thoughts to yourself.
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Mike Masnick (profile), 11 Jul 2009 @ 12:14pm

Re: patent attorney?
Are you a patent attorney? Have you ever prosecuted a patent application? If not, kindly keep your unqualified thoughts to yourself.

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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Paul O'Malley, 13 Jul 2009 @ 4:45pm

http://www.peertopatent.org/ is useable
all I did was search and click
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Anonymous Coward, 22 Apr 2011 @ 9:20am

Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
"Many things appear "obvious" once they are invited, but without having the solution to guide you, just how obvious is the solution?"

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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Anonymous Coward, 22 Apr 2011 @ 10:20am

Re: Re: Re: Re: Re: Re: from the "glad Masnick isn't a patent lawyer" department...
Besides, plenty of innovation has and will continue to occur perfectly fine without patents. Patents should only be granted on innovations that will not occur without patents. To the extent that people are somehow fundamentally unable to determine if an invention is obvious only because they somehow must only evaluating it 'in hindsight' as you say, that is an argument against the patent system. Granting patents on everything is worse than granting patents on nothing and there is absolutely no reason to grant patents on inventions that don't need patents to emerge. If we really can't tell the difference between a patent worthy idea and a non-patent worthy idea, then I say we're better off doing away with patents altogether. Maybe every patent is invalid.

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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