A Better Model for Patenting?

As mentioned in an earlier post, I am pretty miffed by the weakened state of the U.S. Patent Office and the IP "land grab" that has ensued. I kind of feel like examiners in the U.S. Patent Office find themselves in the same position as examiners in the NY Department of Buildings, reviewing countless requests for renovation permits in the wake of the Wall Street boom. Patent examiners are being deluged with requests, resulting in an overworked, harried staff that is motivated to move paper instead of giving each application its due. This is not their fault - the system is flawed. But their output impacts us all, with potentially far-reaching and innovation-stifling effects.

One recent suggestion written up in Fortune talks about using a Wikipedia/peer review model to enhance the quality of information considered during the patent examination process:

The issue is that patent applications have tripled in the past two decades, leaving examiners only 20 hours on average to comb through a complex application, research past inventions, and decide whether a patent should be granted.

As a result, critics contend, quality has declined and lucrative patents have been granted for ideas that weren't actually new.

One solution is to let astute outsiders weigh in during the patent-review process, as online encyclopedia Wikipedia does, vastly increasing the information available to the patent examiner.

Wow, what a cool way to harness the power of the collective brain for good. Though writing about a different topic, business development in a Web 2.0 world, Fred Wilson hit on a theme - leveraging good stuff that already exists instead of doing something (that may ultimately be of lesser value) from scratch - that I believe is directly relevant here:

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These days it's often better to just take what's already freely available on the Internet to integrate with other web services. As Caternina explains in this post, the Flickr team didn't really have enough time to focus on the multitude of companies wanting to offer a printing service. Qoop just built one and when Flickr looked at it, it was an easy decision to offer it to their customers.

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The bottom line is that web 2.0 offers a new way to get integration with leading web services and you don't have to waste your time and the time of other busy people trying to craft deals that will probably work out badly anyway. As Caterina says, "Much, much better this way!"

Get the analogy here? There is so much knowledge out there already spread across the increasingly friction-less world, how could a single patent examiner possibly know more than the collective brain of the Internet? It is simply not possible. IBM has already gotten behind this initiative and, along with Microsoft and Hewlett-Packard, is preparing to road-test this concept using a subset of their existing patent portfolios:

Says Dave Kappos, vice president for intellectual-property law at IBM: "It's a very powerful concept because it leverages the enormous capabilities of the entire world of technical talent."

Working with IBM and the Patent Office, Noveck developed a system that will not only permit, for example, an inventor to show that an allegedly new idea is already in practice but also lets reviewers rate one another's submissions, much as they do on eBay (Charts) and Amazon (Charts).

Patent examiners will be given only the ten highest-rated pieces of input, and attempts to sabotage a competitor's application by submitting phony material should theoretically be avoided.

At this point the patenting process is so broken and the stakes are so high that almost any reasonable suggestion should be considered. This patent-with-the-help-of-Wiki idea is just the kind of out-of-the-box thinking we need. The creator of this idea, an NYU Law School professor named Beth Noveck, had the vision to suggest something that seemingly goes against the whole concept of patenting in the first place - I have something unique (I think), I won't tell you what it is for a long time, I am going to protect it, and you can't have it unless you pay me.

However, the unintented consequences of an overworked Patent Office - too many patents granted for ideas that are either too broad or not truly unique - has directly threatened the innovation culture that has made the U.S. an engine for global technology growth. While a little openness may seem anathema to the patenting process, it may be just what we need to align interests, reward true innovation and break the patent log-jam. I am eager to see how the pilot goes. Drastic change is required to get things back on track, and this might be just the ticket.