PTO Adds Crowdsourcing Tool to Patent Application Process
Applying for a new patent? Take note: The public is watching. The Patent and Trademark Office has teamed up with Stack Exchange, a popular Q&A website for IT professionals and experts in a variety of areas, to make it easy for technology buffs, software geeks, and others with specialized knowledge to check out any new application and question whether it really deserves a patent.
If the plan works as hoped, patent applications that previously might have sailed through the process will now undergo a lot more scrutiny, with expert eyes from the public looking for prior art that could preclude patent approval. The goal is to make the days of overly broad, absurd patents a thing of the past.
Were building a crowd-sourced worldwide detective agency to track down and obliterate bogus patent applications, Joel Spolsky, co-founder and chief executive officer of Stack Exchange, wrote in a blog post on the companys website.
A month ago none of this would have been possible. But included in the patent law reforms implemented last week as part of the America Invents Act is a provision that for the first time allows third partiesnot just the applicant and patent examinerto become involved in the patent approval process. Any person at any time may cite to the Office in writing prior art consisting of patents of printed publications which that person believes to have a bearing on the patentability of any claim of a particular patent, the new law states.
By introducing third-party input into the examination process for the first time since the inception of our nations intellectual property system, were able to expand the scope of access to prior art in key areas like software patents, PTO Director David Kappos said in a statement.
To be part of this new group of patent watchdogs, individuals can just log on to Ask Patents, where they can point out a patent application they believe is bogus or find a list of patent applications that others have questioned. Users of the site can discuss a proposed patents validity and can cite evidence for why the patent should be denied.
Eventually, the service would like participants to be able to submit their evidence directly to the PTO by just clicking a button on the Ask Patents page. But for now, someone needs to actually take the information and file it on the PTOs website, said Jay Hanlon, a vice president of community growth at Stack Exchange.
Since only dedicated activists or parties with a vested interest are likely to take that extra step, Stack Exchange has been working with the PTO to train patent examiners to go to Ask Patents, plug in the application number of the patent they are reviewing, and see whether any comments, questions, or prior art has been submitted, Hanlon said. Every application listed on the site is tagged with its PTO application number.
In addition, Stack Exchange and the PTO are integrating their sites with Google Patent Search, so every patent application on the Google site will include a link to all relevant Stack Exchange discussions.
The new operation is the result of efforts by PTO director Kappos, according to Spolsky. Kappos personally approached Stack Exchange and encouraged the company to open a site that would generate prior art to help patent examiners do more thorough examinations.
The concept is based on an earlier pilot project spearheaded by New York Law School professor Beth Noveck. In that project, called Peer to Patent, Noveck and the PTO brought together experts in certain fields to comment on select patent applications. Hundreds of applications were reviewed, and dozens were denied or modified based on the prior art the outside experts found, proving the value of third-party input.
In this age of escalating patent wars, powerful patent trolls, and countless patents deemed by many to be overly broad (or totally bogus), many observers have said the U.S. patent system is broken. The latest patent reforms being phased in are an attempt to fix the system, and the PTO and Stack Exchange are hoping their collaboration will help.
The escalation of the patent wars has led companies to try to patent everything in sight, so they can build up a portfolio of patents ('to defend themselves,' of course, so that they have something to countersue with when they get sued), Spolsky wrote. Our hope is that Ask Patents will reduce the number of patents mistakenly granted for obvious, unoriginal non-inventions, especially around software, a field that is near and dear to us.
Early indications are that the new strategy might work. An application recently filed by Microsoft for a patent on whacking a phone to silence it, for example, prompted a burst of activity on the Ask Patents site. Within eight hours of the site going live, someone found an app that has been available since 2009 in the Android Market that does just that, said Alex Miller, Stack Exchanges chief of staff.
Another application for a video game that includes a system and method for creating video games and virtual realities wherein one can select from a plurality of Hero's Journey Codes of Honor to play by prompted a slew of gamers to explain what that really means and cite examples of similar games. A diligent patent officer searching for 'code of honor' in video games might not turn up anything, but almost any gamer can translate what that means into extremely similar examples that would likely be relevant, Hanlon said.
The success of patent crowdsourcing will largely depend on the degree of participation from technical experts and from people who understand patent law. We encourage our nations innovators to follow Stack Exchanges example and assist us as we improve the examination process and resulting patent quality, Kappos said. Some of the prior art submissions from the public may lead an examiner to deny a patent. Some may result in a narrowing of the patent. Others, of course, may have no impact of all.
Its not a complete fix, Spolsky said. But its a start.