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.
Yale Law Tech 
Wouldn’t an adversarial system decrease efficiency, which is already quite lacking? My impression of the peer-to-patent system is that if it were truly popular and each application received, say, 100+ reviews, the filing process would be even more strenuous for examiners, who have to not only read reviews but also conduct their own search. Is this worth the supposed increase in quality of patents?
Also not sure how Google patents is adversarial rather than inquisitorial, as you are ultimately searching/examining the database for relevant information.
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Wouldn’t an adversarial system decrease efficiency, which is already quite lacking? My impression of the peer-to-patent system is that if it were truly popular and each application received, say, 100+ reviews, the filing process would be even more strenuous for examiners, who have to not only read reviews but also conduct their own search. Is this worth the supposed improvement in quality of patents?
Also not sure how Google patents is adversarial rather than inquisitorial, as you are ultimately searching/examining the database for relevant information.
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An adversarial system introduces more information which is arguably making the system as a whole less efficient, but if you factor in getting the right results, it may in fact make it more efficient. If you consider how much frivolous patent lawsuits are going on because of the questionable validity of some patents to begin with, then there clearly is a lot of inefficiencies in the system that can be removed by a more complete information review.
I think Google Patents can be built on or serve an inspiration for a more automated system of gathering related information about a patent application. This would help produce a competing case against granting the application. It certainly isn’t the same as having a flesh and blood advocate against the application, but this will make the process automatically a little more adversarial than it currently is.
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@Lynn: Another element of Noveck’s Peer-to-Patent system is a “top-ten list” of the most important/useful submissions of prior art as voted by users. The top ten list gets forwarded to the examiner, who then has a very manageable list of submissions to work with. Even if some patent application gets a preponderance of reviews, the system can weed out the redundant/irrelevant ones on its own. If you factor this in, it seems like Peer-to-Patent will typically give the examiner a more efficient/higher-quality prior art search, making the system as a whole more efficient. (Not to mention the avoidance of frivolous patent lawsuits.)
I think an adversarial system could function along the same lines. The public-ness of the system would allow opponents of any given patent to consolidate their opposition, and friends of a patent to consolidate their support. This consolidation factor would result in the strongest and most relevant pieces of evidence coming to the surface as early as possible.
Also, just as a general principle, I think adversarial systems of any sort are just generally more efficient than inquisitorial ones, as the competitive element generally forces the most relevant facts and arguments to come out earlier rather than later.
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One thing about Noveck’s Peer-to-Patent system is that it compiles a “top-ten list” of prior art submissions, decided based on users’ rankings. This gives the examiner a manageable selection of submissions to deal with, so that even if a given application receives a preponderance of reviews, the system weeds out the redundant/irrelevant submissions on its own. So the efficiency issue can be taken care of if we just design the system in a certain way.
It seems to me like something similar could occur with a more adversarial system. This would allow for opponents of a patent application to consolidate their opposition and put forward the strongest and clearest reasons against the granting of the patent. And friends could consolidate their support with the equivalent of amicus briefs.
Also, it seems to me that an adversarial model just is generally more efficient than an inquisitorial model, as the competitive nature of the process forces the strongest and most relevant evidence and arguments to come out earlier rather than later.
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