Peer-to-Patent: A System for Increasing Transparency

This approach helps the examiners make decisions on patent-worthiness by marshaling forces to identify potential examples of "prior art"

By John Hagel and John Seely Brown

Open innovation. Crowdsourcing. You hear about these ideas a lot in the management literature and business press, but it's surprisingly hard to find examples of them in the wild.

Most of the companies putting these ideas in play so far have focused narrowly on transactional outreach to individuals. They post problems or challenges to the network, and people respond with ideas or answers. Without being too ungenerous, these approaches often resemble ramped-up suggestion boxes. Certainly there is power in suggestions and diverse ideas, but to paraphrase an old song, is that all there is?

We believe there are bigger possibilities. Some of them are now becoming visible in pilot efforts working to mobilize large numbers of motivated contributors and tap into their collective expertise and wisdom.

One of the more interesting of these is an effort conceived at New York Law School by Beth Noveck, a professor there and director of the Institute for Information Law & Policy. This effort, called Peer-to-Patent is run in cooperation with the U.S. Patent & Trademark Office (USPTO). Its target is a system that, if not broken, is certainly buckling under the strain of growing demand and limited resources — the global patent system.

Patent applications in the U.S. alone have doubled in the past 10 years. More than 1 million patent applications await scrutiny, and the backlog is growing. USPTO examiners have roughly 20 hours per patent application to determine whether the application should be granted a 20-year exclusive monopoly. On the other side of the patent application process, patent litigation is on the rise as more and more entities challenge the validity of patents already granted, often citing prior art that had not been considered as part of the original application process. Companies consume large sums in challenging and defending patents already issued.

Social Software

Something's got to give. Almost two years ago, the New York Law School began the "Peer-to-Patent Community Patent Review Pilot" in collaboration with the USPTO. This pilot initiative is a milestone since it represents the first significant effort to apply social software directly to the decision-making process of the federal government.

The idea behind the pilot was powerful. Why not provide some leverage to the USPTO patent examiners by mobilizing a broader group of interested parties to research and identify potential examples of prior art? In the context of patents, prior art refers to all information that has been made publicly available about an invention that could be relevant in assessing a patent applicant's claims of originality—it could be prior patents issued for inventions similar to the one under review, but it also includes published articles and public demonstrations. Overworked patent examiners are generally able to identify prior patents related to an application under review, but it is a much more challenging task to identify relevant articles or demonstrations.

The pilot program was sponsored by an impressive array of institutions ranging from the MacArthur Foundation and the Omidyar Network to a broad range of leading companies like General Electric (GE), Hewlett-Packard (HPQ), and IBM (IBM). It is particularly impressive that direct competitors joined together to sponsor this initiative despite their differences.