An interesting press release from IBM yesterday, reported in today’s Australian here. and in the New York Times here (there’s a story in WSJ, too, but it’s subscriber only). In essence, IBM has announced 3 ways it is working with the USPTO, Open Source Development Labs (OSDL), members of the open source software community and academia to improve patent quality. Fascinating projects that put ‘peer development’ of knowledge and tools into practice.

[update: in addition to the above sources, it’s worth dropping by Groklaw for more on these initiatives]

More over the fold.

The announcement mentions three related projects. They are (to quote the IBM press release):

  1. Open Patent Review – In conjunction with the USPTO, this program will encourage various communities to review pending patent applications and provide feedback to the patent office on existing “prior art” that may not have been discovered by the applicant or examiner
  2. Open Source Software as Prior Art – This project will establish open source software – with its billions of lines of publicly available computer source code contributed by thousands of programmers – as potential prior art against patent applications; and
  3. Patent Quality Index – This will create a unified, numeric index to assess the quality of patents and patent applications.

These are interesting developments indeed.

Open Patent Review

The idea of making patents more available, and accessible, during the examination process has been around a while. The problem that it seeks to solve is the fact that for a patent to be granted, the invention should be both novel (not already revealed, published or done), and inventive (not obvious). There are lots of people out there in the world who can say whether something is obvious, or whether something is already being done – but they are not the people examining it. The question? How do you get that information from the world, to the patent office – in a way that doesn’t just:

  • overwhelm the patent office with useless information, increasing the workload to limited benefit; or
  • waste the time of people in the community.

This is not at all straightforward – you have to gather the information, you have to rank/filter it, and of course, there is the problem the other way – how do those with the information work out that their information is relevant? How does a programmer read a patent and work out that it describes what they are already doing?

There has long been a right for third parties to submit information in the course of examination under the law – eg under our Patents Act, information can be submitted under s 27. But it’s not been that much used, and most people wouldn’t know (a) that they can submit information, or (b) that there was a patent they should be worried about.

The Internet, of course, and developing software and social networking software (think wikis, reputation systems, etc) open up new possibilities for gathering, filtering, and ranking information. Various projects have already been instituted that capitalise on existing community information. The EFF ‘patent busting’ project, for example, used calls to the broader community to identify the ‘worst offending patents’ that were both invalid, and harming innovation – with a view to having those patents challenged/re-examined.

The Community Patent Project goes a step earlier, to examination. The project is discussed, in a lot more detail, in a paper here by Beth Noveck of the New York Law School. Workshops in February I think are being designed to refine and discuss the proposal: see here, and also here.

The Open Source as Prior Art Initiative

Another project is the Open Source as Prior Art Initiative. It’s main home is this website. The aim of this project includes:

  • Establishing electronic publication practices that any software author can use to ensure their source code can be used as prior art.
  • Creating search mechanisms and interfaces that allow patent examiners and others to more easily locate relevant electronically published source code and its related documentation.
  • Developing a “taxonomy” or “tagging” system that can be used by software developers, patent examiners and others to describe and help locate relevant source code and documentation

A public meeting will be held at the USPTO on February 16th.

Open source software is, of course, already prior art – but it’s not that easy to find for examiners. I guess you can see this project as creating another resource for examiners conducting their searches – another database, but presumably one that does a bit of ‘translating’ or mediating between language and code.

The Patent Quality Index

The third project has its home at this website. The aim is:

‘[to] create a unified, numeric index to assess the quality of patents and patent applications[which] will be an open, public resource for the patent system. The index will be constructed with extensive community input, backed by statistical research and will become a dynamic, evolving tool with broad applicability for inventors, participants in the marketplace and the USPTO’.


These are really interesting, ambitious initiatives. Open access and development, and peer creation has been one of those buzzwords that has really taken off in the last couple of years – think open source software, but also the translation of open source ideas to things other than computer software – Wikipedia, for example. These developments are a bit like Wikipedia – they seek to use community information, and knowledge, and gather it together for a new and useful process. But it’s even more ambitious in one sense – because the process will involve not just gathering information, as Wikipedia does, but also a significant process of melding disciplines and translations. Parts of these projects need to:

  • translate patents – which combine legalese with technical language – into something that community members can understand and interact with;
  • translate statutory standards – novelty, obviousness – into things that can be measured, indexed, etc.

Wow! Watch those spaces…