Patents by the people

By Beth Simone Noveck

A year ago this month, the United States Patent and Trademark Office, in cooperation with New York Law School and a network of corporate and academic reformers, began a first-of-its-kind experiment in participatory democracy.

Designed to capitalize on the expertise and knowledge of the American people, the Peer-to-Patent pilot was implemented to connect the Patent Office to an open network of scientific and technical experts to assist with the examination of pending patent applications in the hi-tech industry. Unlike Friendster and Facebook, which help people form new friendships, romances, and professional affiliations, Peer-to-Patent is a “social networking” website used to solicit public participation in governmental decision-making.

Here’s how the program works. With the consent of participating inventors, public volunteers review patent applications from such software companies as IBM, Intel, Oracle, and Yahoo! via the Peer-to-Patent website. Reviewers submit literature such as product manuals and journal articles to help the Patent Office assess the novelty of an invention and decide if it merits a patent. Because the Peer-to-Patent website poses very specific questions to solicit only what the Patent Office needs to know, it is attracting participants with a high-level of expertise and enthusiasm. Instead of leaving the review of a patent application to a single patent examiner, Peer-to-Patent is effectively soliciting the input of the wider, scientific community.

This experiment in participatory government is yielding information the Patent Office could not find for itself. Of the first twenty-four patent applications reviewed vis-à-vis Peer-to-Patent, the Patent Office used public submissions to make its decision in nine cases. Ninety-two percent of patent examiners said they would welcome another application with public participation. Jonathan Schwartz, CEO of Sun Microsystems, called Peer-to-Patent one of the “…leading institutions promoting…patent reform.” The pilot has attracted international attention: the national patent offices in Japan and the United Kingdom are instituting similar programs.

Governmental agencies decide on acceptable levels of mercury emissions in the air, anti-discrimination rules in education and the workplace, and the standards for cross-ownership of newspapers and broadcasting stations. Currently, public comment periods for draft regulations, though open to anyone, attract little participation or are dominated by interest groups. Could the Peer-to-Patent collaborative approach be extended into other areas of government decision making such as environmental or transportation regulation? How might people from many backgrounds, disciplines, and industries be called upon to discuss the policies by which our government will address the most pressing issues of our times? Could a government agency’s information deficit be improved if officials were connected to networks of concerned citizens?

Two recent organizational phenomena suggest possibilities. In a June 5th blog entry, Asa Dotzler, Community Coordinator for the Mozilla Corporation, reported that its free Firefox web browser had 60 million active daily users and upwards of 180 million active users in total. Since 1998, the Mozilla Corporation has invited its end-users to help with Firefox’s marketing campaigns, respond to queries on Mozilla message boards, write or edit documentation for developers, and even develop the software code for the browser.

Since his campaign’s inception, Senator Barack Obama has taken the use of technology beyond Howard Dean’s record fundraising effort in 2004 and used the Internet for participation and engagement. He invites ordinary citizens to blog on his official website. He asks experts to participate in policy-making forums via listservs and his website. His site “Fight the Smears” helps supporters combat untruths about the candidate’s personal history and background. If Obama is elected President, experiments in participatory government may become more widespread. His Technology Plan, published in November and announced in a speech at Google, calls for establishing pilot programs similar to Peer-to Patent. Senator Obama speaks of deploying the latest Web 2.0 technologies – blogs, wikis, and social networking tools – to make government more open and participatory.

Compared with the Mozilla Corporation and the Obama campaign, Peer-to-Patent is a small experiment. But it’s the first such experiment in government. That’s the point: start small, try something, and see what works to bring about a more engaged citizenry.

Peer-to-Patent challenges prior assumptions about the need to centralize all aspects of decision-making in government. Even with the best intentions, a handful of professionals in an institution do not possess as much information as that of the many dispersed experts in the field. In the IBM 2006 Global CEO Study, when asked where they looked for fresh ideas, CEOs cited clients, business partners and employees far more than their own R&D labs. New networking technologies provide an opportunity to improve the quality of government decision making. But this opportunity has not been seized. As the pace of innovation accelerates, government is falling behind. Government officials could do their jobs more effectively if they were connected to a network of people who might supply needed information.

In its first year, the pilot program has shown that the public has access to information that an average patent examiner does not. Despite the complexity of the patent examination process, the public will take the time to contribute to it, ultimately improving the quality of Patent Office decision making and making government at once more expert and more democratic.

One Response to “Patents by the people”

  1. A.J. Sutter Says:

    “Peer-to-Patent challenges prior assumptions about the need to centralize all aspects of decision-making in government.” There is a bit of rhetorical sleight-of-hand here.

    (1) While the Peer-to-Patent program sounds good as described here, its essence is allowing the public to serve as research assistants to examiners. This gives the examiners a better foundation for making a decision. But it is not delegating any part of the decisional authority to the public. I think that’s appropriate, but contrast that with, e.g., soliciting votes from outside the government as to whether a patent should be granted (I don’t advocate this, BTW).

    (2) If you consider background research to be an “aspect” of decision-making, then the statement is true in a literal sense, i.e. that this decentralizes some “aspect” of decision-making. But to adopt such a reading willfully blurs the important distinction between research and decisions.

    (3) Even if you do adopt the reading in (2) above, then one can challenge “challenging.” The executive branch has long solicited comments on draft regulations before making them final. In fact, you can argue that since those comments often directly criticize the substance of the preliminary decision, rather than just providing background information to guide the government in making the decision, that mechanism is even more pertinent to decentralized decision-making than the Peer-to-Patent case. Certainly it’s no less so. And it’s been around a long time. The “prior assumptions” Ms Noveck refers to are just a rhetorical straw man.

    I don’t have any substantive problem with the Peer-to-Patent program as described; it sounds very useful. But I don’t think the article’s rhetorical hype is a beneficial form of “nudge”.

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