Will peer-to-patents fly?

It looked and sounded like a very good idea. In a reaction to chronic problems of long delays (up to four years) in granting patents and growing complaints about the quality of patent reviews (see our blog of 6 February 2007), the faculty of the New York Law School’s Institute for Information Law and Policy, in particular Professor Beth Noveck, developed a new approach called the “peer-to-patent”.

This approach consists essentially in bringing together the community of institutions with the necessary expertise to review patent applications and fast-track those which are of greatest interest to the community.

The first sector to test this approach is software. The institute approached several large corporations involved in software design and intensive use, and the US Patent Office, with a proposal to set up a Community Patent Review project  for software patent applications.

Such a project would use social software to bring together experts, who would review applications online. The proposal was very well received – it was endorsed by the Patent Office and, on the corporate side, obtained commitments from IBM, Microsoft, General Electric, Red Hat and Computer Associates as well as from McArthur Foundation and the Omidyar Nework. The project is now in the advanced planning phase, with initial testing for up to 250 applications, starting in early April and the target launch date for the pilot set for 1 June 2007. If this project is successful, Patent Office and the institute plan to extend it to other technologies, such as biotechnology.

Yet, for all its innovative and apparent widespread support of major software patents’ constituencies, the success of the project is far from certain. Many potential participants are concerned that the proposed approach exposes reviewers to potential infringement charges, which may result in triple damages. Another risk is that of either excessive or incomplete disclosure of patent details, which may lead to suits by competitors and result in partial or complete invalidation of litigious patents.

The project’s promoters are seeking to assuage those concerns but they will need to ensure that their legal framework is airtight, without becoming too similar to existing arrangements for information exchange. One would also expect that the project participants will initially be quite selective and cautious in submitting their applications.