Bearing resemblance to inquisitorial systems, the present patent system lays a lot of responsibility on patent examiners who serve as the primary investigators and judges. With hundreds of thousands of applications a year, it’s no wonder patent examiners are overworked and backlogged. It’s become a tradeoff between quality and quantity, which could be tempered by making the system to be a bit more adversarial. Doing so would require the Patent Office to not only consider the perspective of a patent applicant, who is obviously incentivized to see the application move forward, but also consider the perspective of a highly motivated opposition. While more information may lead to better decisions, it may also require too much work. However, several changes to the current system could be made that simultaneously improve the quality and quantity of patent examinations.
Peer to Patent was a great first step by opening up the process to public input. Outside parties could upload prior art which would invalidate frivoulous patent applications. The next step would be to open up the process further and invite the equivalent of amicus briefs by outside parties who may have an interest in the outcome. They could file explanations of why the patent-pending invention was obvious or somehow unqualified to be patented. This process change would make patenting more in line with receiving other government licenses and approvals that require public hearings.
Google Patents could serve as inspiration for a web application that serves as an automatic adversary against patent applications. The idea would be to run the claims of patent applications through Google Patent search to return the most relevant existing patents and surface possible prior art. It could go further by searching the websites and presentations of patent filing companies to identify possible prior art. It could also expand the search automatically to academic journals and online press. All of this information could be compiled automatically into a succinct dossier for the patent examiner to start the examination with.
At some point, Peer to Patent could get more social by actually automatically inviting parties to oppose an application. It could identify businesses and parties affected by a patent application by searching for related patent filers and holders. It then would mail or email the relevant parties about the patent application and solicit opposing arguments or prior art.
Of course, all of these changes rely on valid and meaningful information being provided by opposing parties. Requiring a nominal fee for accepting 3rd party material would help discourage frivolous information from being submitted. Certifying information to be true under the threat of federal criminal charges of perjury will also discourage false information from being submitted.
If all these technical and procedural changes aren’t enough, a simple legal change could make a huge difference. In actual patent lawsuits, the current legal standard for throwing out a patent is “clear and convincing” evidence that a patent is invalid. Microsoft is currently arguing the standard should be lowered to simply a “preponderance of evidence” as is the case in civil lawsuits. Lowering the bar would make patent lawsuits much more focused on the validity of the patents in question. It would actually bring patents into the adversarial legal system we already have.
All in all, the patent system would have much to benefit from a progression towards a more adversarial process. Does anyone disagree or does everyone accept my findings which are based on a cursory examination of the facts?
Victor Wong is the author of two patent applications for online advertising related technologies.