Program turns to online masses to improve patents

Some of the biggest players in the technology industry complain that the U.S. patent system is broken — putting too many patents of dubious merit in the hands of people who can use them to drag companies and other inventors to court.

And Blaise Mouttet, a small inventor in Alexandria, Va., thinks he knows why. The problem, he said, is that "there are too many lawyers and not enough inventors involved with the patent system."

So Mouttet is taking part in an experimental program launched in June 2007 with the U.S. Patent and Trademark Office and backed by the technology industry that is intended to give the public — including inventors — more of a voice in the system.

The concept behind the program, called Peer-to-Patent, is straightforward: Publish patent applications on the Web for all to see and let anyone with relevant expertise — academics, colleagues, even potential rivals — offer input to be passed along to the Patent Office.

By using the power of the Internet to tap the wisdom of the masses, Peer-to-Patent aims to dig up hard-to-find "prior art" — evidence that an invention already exists or is obvious and therefore doesn't deserve a patent.

The goal is to locate prior art that Patent Office examiners might not find on their own — and to produce better patents by reducing ones granted on applications that aren't novel. The hope is that this will drive innovation by improving the patent process and reducing the patent infringement lawsuits clogging the courts.

"The Patent and Trademark Office is the agency of citizen creativity, and it needs more and better information to do its job of awarding patents to those citizens who are truly the most creative," said New York Law School professor Beth Noveck, who came up with the idea for Peer-to-Patent while teaching a patent law class. "A patent is a pretty significant monopoly, so we want to make sure we are giving it to the right people."

Peer-to-Patent has attracted financial support from a cross-section of the technology sector and foundations and is in its second pilot year. In the first year, the voluntary program focused on software, computer and information security patents — drawing applications from industry heavyweights such as International Business Machines Corp., Hewlett-Packard Co., Microsoft Corp., General Electric Co. and open source software pioneer Red Hat Inc., as well as small inventors like Mouttet.

Mouttet, a former Patent Office examiner and now a graduate student in electrical engineering, submitted an application on electronic uses of nanomaterials. Although the Patent Office has rejected his claim — in part because of prior art unearthed through Peer-to-Patent — he is appealing the decision and optimistic he will eventually get his patent. And he is confident it will be stronger for having gone through the process.

But it is the big technology companies that have the highest hopes for Peer-to-Patent since they are some of the most vocal critics of the existing system.

They warn that the Patent Office has been overwhelmed by a sharp increase in patent applications in recent years, particularly in computing. The agency has more than 5,800 examiners with specialized expertise in a range of areas, but they are sifting through a mountain of applications: 467,243 were submitted in fiscal 2007, up from 237,045 in fiscal 1997 and 137,173 in fiscal 1987.

As a result, said Dave Kappos, vice president of intellectual property law for IBM, it is taking big technology companies with huge patent portfolios longer and longer to get applications through the system. The Patent Office had a backlog of nearly 761,000 applications at the end of fiscal 2007, with applicants waiting an average of two years and eight months for a final decision.

That is tough for an industry built on rapid innovation, short product life cycles and technology that can become quickly outdated, Noveck said. Indeed, a key benefit of participating in the Peer-to-Patent program is the promise of an expedited review,