Qualcomm v. Broadcom. Amazon v. IBM. Apple v. seemingly everyone. The number of high-profile patent lawsuits in this country has reached a staggering level. Hoping to curtail the orgy of tech-industry litigation, the U.S. Patent and Trademark Office (USPTO) is experimenting with reforming the way patents are applied for and processed. Launching on 18 June 2007 was an Internet-based peer-review program whereby anyone (yes, even you) can help to evaluate a number of software patent applications voluntarily submitted for public evaluation. The one-year pilot Peer-to-Patent program is a collaboration between the USPTO and New York Law School’s Institute for Information Law and Policy, in New York City. The program’s Web site allows users to weigh in on patent applications by researching, evaluating, submitting, and discussing prior art, which is any existing information, such as articles in technology journals and other patents, relevant to the applicant’s claims.

Professor Beth Simone Noveck, founder of Peer-to-Patent, spoke with IEEE Spectrum reporter Suhas Sreedhar on 13 June 2007. (The interview has been edited for content and clarity. An audio supplement to this article will be available later this week.)

How did this project come about?

I am a professor of intellectual property law at New York Law School, and in discussing the patent examination system in class with my students, we remarked how, in this day and age of Wikipedia and blogs and online social networks, it seemed almost illogical to have a single patent examiner making a decision about a 20-year grant of monopoly rights with regard to a potentially important scientific innovation or something that could turn into a billion-dollar business. And so I proposed this idea and was not long thereafter contacted by IBM, which had also been doing some thinking and talking about the idea of putting out online collaborative tools to use to try to improve the patent system. Together we then did two things: we solicited other companies to get behind the idea of improving patent quality through public participation, and we went to the USPTO and suggested the idea of opening up the patent examination process for public participation. It’s really to the USPTO’s credit that they agreed to do it, and that they proposed the idea of a pilot in the software patent area.

Then we worked together—the USPTO, the private-sector corporations, and us, the university, along with a whole series of academic collaborators from different disciplines.

Does the USPTO have a history of using peer review?

I think, first of all, government agencies outside the intellectual property arena all practice some form of public participation. For instance, there’s what’s called notice-and-comment rule making, whereby an agency, such as the Environmental Protection Agency, will post a draft rule and invite the public to submit comments. There are also similar agencies that use peer review processes; they get scientists together to give feedback, in small groups, on agency research, for example. So there are other agencies that have a practice of consulting the public. This has not been done in the intellectual property arena for 200 years. The patent examination process has been a closed process without public participation except to the most limited extents.

It’s a new idea to open up the process and create a structured program on the Web that would allow people to provide input on the basis of expertise. Where public participation has been invited, it typically has come in two forms—either from paid lawyers and lobbyists who write extended briefs or legal documents that they submit to the agency, or in the form of postcards that are sent by interest groups to the agency in response to a potential rule. There’s never really been a way to take the more serious and thoughtful practices of peer review, where you’re giving really substantive input, and to do it in such a way that is open for everyone to participate in, whether that person is a graduate student or a professor, whether that person is in industry or in academia, and to open it up to a wider audience.

How do you get involved as an inventor?

If you’re an inventor, you submit an application to go through the public peer review process. The application is available online from the USPTO Web site and also from our Web site. The USPTO will review the request and respond to the inventor to let him or her know if the proposed invention is eligible for participation in the pilot program.

The advantages to participate if you’re an inventor are that the USPTO will allow your invention to get a better examination because the public is participating and to have the application reviewed faster. All applications that go through the pilot will be reviewed out of turn—in other words they’ll be taken first—and if you think about the fact that there’s now over a four-year backlog in this area of patents to get examined, being examined out of turn and having one’s invention reviewed in the course of less than a year, which is what the commitment is, I think is a tremendous incentive to participate. In addition, there is the value of getting public input that will help with refining the patent application and ensuring that the claims in the invention are truly new and an advance over what came before—which is what the law requires for that application to be valid.

To get started reviewing software patent applications, visit http://www.peertopatent.org.