Since patent reform is back on the political agenda and since I think the current proposed legislation is little more than paid-for lawmaking, I thought I’d be proactive in suggesting areas to reform that I believe would benefit everyone. I want to start with the patent review process.
I am by no means an expert on the operation of the patent & trademark office. But it seems to me the that the concept of the patent reviewer harkens back to a by-gone era of Renaissance men. These wise men of years gone by used their luxury of time to become conversant in a broad range of technological domains. That feat was manageable because a century or two ago the breadth and depth of knowledge in each topic was limited and largely assessable.
But those days are long gone. Now we live in a world of domain expertise and every year the definition of “domain” narrows and fragments as the body of associate knowledge grows. So, is it really practical to hinge a review system on the presumption that a small cadre of patent examiners can attain, and retain, an amazing spectrum of technical and legal expertise? An expertise which must be sharp enough to assure high quality review given an average 18 hours spent per patent application?
This is particularly illogical given the Peer-to-Patent Review project (developed by the New York Law School and run by both the US PTO and the UK Intellectual Property Office) and private efforts such as Article One Partners are demonstrating that broad community support strengthens the review process. It extends domain expertise and helps in surfacing prior art.
It seems to me that we’ve reached the point where federated, community-supported review processes need to be established as the norm. Patent reviewers should transition from being conduits to coordinators.The alchemy in an effective review process would no longer be hinged to the breadth and depth of an individual’s technical expertise but rather their skills in attracting and retaining a group of skilled and committed collaborators. That means that patent reviewers should be valued as much on who they know as what they know.
From my observation one of the biggest challenges facing the patent system is patent quality. And in my area of interest, information technology, poor patent quality increases litigation, results in distorting business practices and acts as a governor on innovation.
This should not be used as an excuse to change damage assessments, invention accreditation and reexamination rules. Instead it should be a wake up call to address the systemic problems we have in the review process.