The Peer-to-Patent: Community Patent Review project

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If you’ve followed the things I’ve discussed over the last three years in this blog, you’ll note that while I’ve talked about open source and standards, I’ve also discussed patent pledges and some of the things that IBM has done to improve patent quality. This entry has some information about community involvement with reviewing patents and provides you with some links so you can see firsthand how the new system works. The basic information was provided to me by colleagues in IBM’s Intellectual Property Law department who have been involved.

If you have had any experience with the patent system, you probably know that a single person (a “patent examiner”) determines whether an inventor deserves a patent. When you consider the significance of patents, the power to prevent others from using your ideas inappropriately, you appreciate the tremendous responsibility taken on by patent examiners to ensure that only real inventors that advance the state of the art receive patents. This is an important job and there is a terrific onus on examiners to get it right the first time.

Their work is daunting when you consider that we, the public, expect them to find relevant prior art within an enormous body of public knowledge, including issued patents, published patent applications, products, technical and scholarly articles, and Ph.D theses from around the world. With the body of public information growing ever-faster, we should consider if there might be a better model. The Peer-to-Patent: Community Patent Review project is an attempt to produce just that.

By bringing to the patent examination process modern tools of collaboration, the same tools industry and academia have been increasingly exploiting to advance the state of technology, we can dramatically change the patent examination process. The project opens the traditionally closed patent examination process to the public via the Internet.

This makes it simpler and more convenient for anyone interested to find published patent applications, collaborate with other experts anywhere in the world to find and discuss the relevant “prior art”, and forward the best prior art on to patent examiners at the US Patent & Trademark Office (USPTO).

The pilot, which began in June, is led by Professor Beth Noveck of NY Law School, in cooperation with the USPTO. It’s focus for its year long duration will be 250 patent applications for software inventions.

Participation is easy – just go to to register – and free – all you need is Internet access. The website has a lot of information to help you get started, including some interesting graphs so you can see at a glance what activity there has been around discussed patents. You also have the ability to direct the system to email you when patent applications in your area of interest are entered or receive new postings.

I know that many members of my reading audience have strong opinions on patents, but if you’ve ever complained about undeserving patents, now is your chance to do something about them. Make your voice heard while you have the chance and help make sure the project is a success, if you believe in its goals.


  1. The problem is subject matter, not novelty or non-obviousness.Examiners generally do a good and difficult job. they are not to be blamed for opening the flood gates.

    “I know that many members of my reading audience have strong opinions on patents, but if you’ve ever complained about undeserving patents, now is your chance to do something about them. Make your voice heard while you have the chance and help make sure the project is a success, if you believe in its goals.”

    Unpaid work? Polluters should compensate contributors. Patent search is an expensive task and the general public cannot be expected to work for free. It is possible to privatize examination but incentives need to be provided. The current opposition system puts an unfair advantage on the applicant, see D. Guellec’s latest publication or basic economic club good theory. The peer2patent project does not provide a sustainable alternative to real reforms.

    My strong opinion is that there is no such thing as a good software patent. I haven’t seen any. Software patents protect a crucial but an irrelevant object. Most of them are an insult on software professionals.

    I would like to quote our beloved friend Rick Jeliffe:
    “As a software developer, I have to waste a deal of time doing patent searches to make sure that I am not infringing: Adobe’s latest success in the MacroMedia case is a good example — it is just plain wrong for the US legal system to grant world monopoly rights on simple combinations of widgets. When I am king of the world, I will revoke all patents which were not the result of more than three years and $5,000,000 research.”
    “Because of the manifest failure of the US patent system, I have not been able to subscribe to this: an unfair, eager-to-please, monopoly-encouraging IPR system directly reduces the ability of R&D-poor countries to compete, and distorts production away from consumer products and towards products for rich people…. If we are seeing the start of the reform of the US patent system, so that the bar to patents becomes extremely high, there may be a sliver of merit in very temporary monopoly grants as long as it encourages bringing products to market: granting patents that then allows the holder to sit on the patent and protect their current technologies is a terrible abuse, and, indeed, should be an offense: if a company does not want to take up its patent rights, they should lapse.”

  2. Once, I had a wonderful idea for an IBM service offering.

    It would be a ‘proof service’; when a bank wanted to put live a ‘Banking by Websphere’ web site, analagous to the ‘Plants by Websphere’ sample but more commercially useful, then IBM would offer (for a fee) to determine whether the web site was ‘correct’.

    That is, whether the poor and hungry teenager from Romania could, or could not, cause an unauthorised funds transfer from my account to his.

    I discussed it with an IBM Research mathematician, and he said ‘no’. You cannot prove it. You can make as many test cases as you want; demonstrate that it behaves ‘correctly’ in all those cases, but you cannot actually come up with a formal mathematical proof. It is too hard a problem. The poor and hungry teenager will win.

    So, the best we can do is to offer a Global Business Servant to put his finger in the dike to sem the flood when there is a leak; and a Software Group Developer to build the dike higher; and ‘Banking by Websphere’ carries on. We can only offer Websphere for so long as we are prepared to have a Websphere service team on standby to resolve our clients’ problems. If it’s used for critical business operations (as it is), then there must be that service capability.

    A patent on Websphere may well preserve IBM’s commercial freedom to do the business it wants to do. But it doesn’t guarantee that Websphere will work.

    Besides, I thought that it was only Judges who determined whether a patent was enforcible and infringed. Why are you asking Engineers ? That’s like asking me whether you’ll survive that outbreak of Bird Flu that is supposed to sweep the world some time soon; I don’t know the answer to that question either.

  3. What’s Wrong with the Patent System? Fuzzy Boudaries and the Patent Tax.

    The Patent Litigation Explosion.

  4. Hmmm.

    Somebody has invented ‘free software’. (I think it’s mostly the universities. IBM writes a little bit of ‘free software’ but not much).

    It can operate all of IBM’s brands of server; iSeries, pSeries, xSeries, and zSeries; and IBM boasts of that fact in the “Dear IBM Investor”

    It stands alongside the ‘non-free’ operating systems for the servers; i5/OS, AIX, OS/2, z/OS or z/VM . OK, perhaps not OS/2. Microsoft Windows, I suppose.

    So why isn’t ‘free software’ taking over the world ?

    And which way does the future lie ?

  5. Intellectual Property’s purpose is help support and encourage innovation. Innovation is something you can not easily measure, it’s made up of multiple dimensions.

    A smart question would be :
    How does Intellectual Property support and encourage innovation?

    Intellectual Property comes in different forms known as copyright, patents and trademark. The history of Intellectual Property is quite interesting.

    Copyright is for promoting intangible forms of innovation (sometimes referred to as liberal arts) by protecting the use of particular expression, for example software especially in source code form.

    Patents was for originally for promoting tangible forms of innovation by protecting its design by disclosing it to the patent office (“patent application”), for example computer hardware.

    Trademark is used as distinctive sign or indicator of a specific service, product and name. This is to provide an incentive to improve quality.

    Software Patents and Business Method Patents definitely do not support and encourage innovation due a rise in patent litigation (articles listed previously show this). Software Patents increase legal cost of software development.

    Intellectual Property is a balancing act determined by multiple dimensions as well. Intellectual Property works successfully provided it is well balanced.

    In Europe, currently Software Patents and Business Method Patents are void per se. One thing I do not understand is why does IBM lobby for Software Patent in Europe? Especially considering it increases the legal cost and IBM is able to operate in Europe without Software Patents. I suspect the answer lies in an irrational decision made by IBM.

    And finally, you must remember I am not not a lawyer and this is not meant to be a comprehensive introduction to Intellectual Property.

  6. Well, it’s really up to IBM to invest in discovering prior art if IBM wants a patent. Spending the money to acquire an invalid patent, and investing development dollars on the strength of an invalid patent, is pointless. Likewise for any other intending patent owner.

    Software is particularly problematic. There are maybe 12,000,000 people worldwide who are capable of programming computers, and they have been doing that since the dawn of the PC era some 25 years ago. That’s an awful lot of software which may be prior art to anything you want to claim a patent for; and there is no practical way of finding it all. If there’s a listing in your attic of something you wrote 20 years ago for a grad school project, that has as much claim to being prior art as anything in the public repositories at places like and corporate internal repositories such as IBM’s Community Source, Internal Open Source Bazaar, and Global Business Services Foundry referred to at . And there are more than a handful of companies who are capable of commercialising software.

    The live commercial question at the moment is between Microsoft with ‘Office’, and Google with Sun’s StarOffice . Imagine you’re a startup business with no investment in workflow process models or legacy documents. Do you buy Microsoft Office (at full list price), or do you download Google StarOffice for $0 ?
    Do Microsoft have any way of making revenue from the Google StarOffice ? Do they have a way of blocking Google from distributing ? Or is their most profitable market segment going to steadily ebb away ?

    A Microsoft-owned patent would be a good way of defending a revenue stream, at this stage.

    Of course, IBM doesn’t have any ‘skin’ in this fight either way. Almost all small start-ups aren’t going to be candidates for buying anything from IBM, anyway. IBM can cheer the ball-game from high up in the stands; can ‘keep the powder dry’.

    When the small start-up grows to be large, though, it’s a different matter. It will be a lot easier to sell IBM Lotus Notes into the business as a ‘professional collaboration solution’ if the business is using Google Sun StarOffice. The office productivity documents will be interoperable, thanks to ISO 26300 ODF XML.

    So I think I know which team IBM will be cheering for.

  7. You’re suppose not use patent for blocking competition, that’s anti-competive!

    What a startup business does is up to them, they all are not going to do the same thing.

    How you commericalise innvovation, is matter of looking at Economics, Business Model and Intellectual Property Model. (Yes, I am famailar with Free and Open Source Software models).

    More reading for you.

    Lessons for Patent Policy from empricial research on patent litigation

    The Value of U.S. Patents by Owner and Patent Characteristics

    Patent Thickets: Strategic Patenting of Complex Technologies

    Here’s something more shocking for you:

    Apache OFBiz[1], guess what it is? It’s an Open Source enterprise automation software , it includes ERP, CRM, E-Commence and more.

    I can see strategies to competing with this (Of course, they definitely DO NOT include any form of litigation) but that’s something for you to think about!


  8. Yes, I know. You’re supposed to say ‘you have a patent, I have a patent, let’s get together and develop a product we can sell’.

    However, large corporations do not always see it that way.

    Google are handing out no-charge Sun Star Offices; the only difference that I can see from the $69.95 one you can buy from Sun is the addition of a Google Search task-bar. I’m watching to see what happens.

    Anyway, I’m in the UK. UK patents work slightly differently from US ones. I think something got lost on the voyage when the Founding Fathers went from here to there.

    We’re catching a bit of ‘back-wash’ here at the moment, though. According to , if I infringe anyone’s copyright I can be put in prison for 10 years. I hope I can’t be imprisoned for infringing a patent, but sometimes I do wonder.

    We can always sell highly-reliable hardware to run , and consulting servants to integrate it with the more traditional lines. I think we’re OK.

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