Review patents from the privacy of your own home!

June 18, 2007 9:08 AM

Peer to Patent goes live. First mentioned on MetaFilter almost two years ago, this project allows open review of patent applications, so that members of the public can better inform patent examiners of prior art. Discussed more on the project blog. This experimental system is part of efforts to improve patent application review. (thanks to ubiquity)
posted by grouse (10 comments total)

where's the slashdot 'PRIOR ART!' crowd now? oh right, probably pouring over patent applications.

"worst. patent. ever."
posted by sxtxixtxcxh at 10:24 AM on June 18, 2007

Is the reward supposed to be that I get to take smug satisfaction in blocking Amazon from Yet Another Ridiculous Patent or is money exchanged?
posted by DU at 10:34 AM on June 18, 2007

It looks like the system is designed to find as much prior art and turn down as many patents as possible, which would be great for filtering out bad patent applications. But use is entirely voluntary by applicants, so won't the applicants of the worst patents just avoid this increased scrutiny?
posted by scottreynen at 10:34 AM on June 18, 2007

scottreynen: This is a pilot project, and there are some incentives to participate. If the project is successful, we might see something like this applied to all patents years down the road.
posted by grouse at 10:58 AM on June 18, 2007

won't the applicants of the worst patents just avoid this increased scrutiny?

If your patent survives this process, effectively none of the prior art found in the process would be successful later in a court invalidation proceeding. It's always best to have the closest prior art before the PTO. Then when your patent issues it is much more likely to be held valid and enforceable. The advantage lies with the patent applicant. The applicant's attorney advocates for the applicant with the examiner and no one provides an opposing point of view except the examiner who also has to try to make a fair decision as to patentability. Once the reference has been considered by the examiner and the patent issues it is all the stronger with respect to that reference. To invalidate the patent one already has to show invalidity by clear and convincing evidence, not a mere preponderance of the evidence, and if the reference was considered by the examiner you have to overcome an additional burden of deference shown to the work of a qualified government agency presumed to have properly done its job. Bottom line, if you want to ever assert the patent in court, having the closest prior art before the examiner during examination is to your benefit.
posted by caddis at 12:49 PM on June 18, 2007 [1 favorite]

caddis, I'm unfamiliar with the following terms, and thus unable to understand much of what you wrote:

1) (patent) issues
2) the examiner
3) the reference
posted by scottreynen at 1:54 PM on June 18, 2007

If I may:

"When the patent issues" means when the U.S. Patent and Trademark Offices officially grants you the patent. This happens after your application has been looked over by an examiner, an employee of the PTO and he decides there is no prior art. A reference is some tangible precedent in the the field of science or engineering, such as a scientific paper. The examiner will decide whether a reference is prior art or not.
posted by grouse at 2:17 PM on June 18, 2007

Patent applications are examined by a patent examiner. If the examiner finds that the application is patentable it will issue as a patent. During this process the main issue is usually whether the invention as defined in the application is patentable over the prior art. The prior art consists of patents, publications, public uses, etc. which are prior in time to the patent application. Printed items of prior art are called references. So, if someone sues you for patent infringement you can seek to have the patent found invalid based on prior art. The burden of proof is already high, but if that prior art you are using was already considered by the examiner the burden is even higher.

Let's hypothetically say that your invention is the ball point pen and the prior art is a quill pen. The ball is a pretty slick feature to add, so it looks patentable. Whoa, the examiner, during the examination process cites a roll-on deoderant applicator combined with a quill pen to show that it would have been obvious to make a ball point pen. Let's say your attorney is successful in convincing the examiner that these uses are sufficiently different that someone would not be motivated to combine the ball from a deoderant applicator into a pen. When your competitors challenge you patent for a ball point pen they will have a mighty difficult time proving to a court that the examiner was wrong and that indeed between these two references your invention is obvious and the patent is invalid. They might succeed, but they are better off looking for something closer. However, if the roll-on deoderant applicator had not been cited by either you or the examiner as potential prior art they would have a much better chance in court with this "new" bit of prior art. I personally don't think they should succeed in such a situation but it would be a close call and could go either way. You would probably end up settling out of court. You would get money from them and keep the patent in force and they would be selling ball point pens but paying you a royalty. Everyone goes home similarly only somewhat satisfied.
posted by caddis at 2:35 PM on June 18, 2007

so much for live preview
posted by caddis at 2:36 PM on June 18, 2007

Thanks. That's kind of the opposite of the effect I thought prior art research would have. I wonder how many people are currently doing such research under the same misunderstanding.
posted by scottreynen at 3:43 PM on June 18, 2007