The USPTO Launches Peer to Patent

On June 15, 2007, the USPTO, in conjunction with the New York Law School Institute for Information Law and Policy, released the new Peer-to-Patent system. The goal of the project is to encourage public participation in patent prosecution. With the consent of the inventor, the new system allows the community at large to submit information regarding prior art or even commentary on an application that may affect the patentability of an invention. However, the only art the system currently accepts is computer architecture, software and information security.

The process involves reviewing and discussing the application, researching to find prior art, uploading the relevant prior art references, evaluating the submitted prior art and providing the top ten references with commentary that were forwarded to the USPTO. With this launch, the USPTO hopes to demonstrate that organized public participation will benefit the quality of issued patents. If this project is successful, the Peer-to-Patent system will be expanded to include other art in addition to computer architecture, software and information security. Industry leaders have already participated in this opportunity including Intel, IBM, and Red Hat, among others.

But why only computer architecture, software and information security? The answer to this question may be found in the short history of patents in this subject matter. Software was not considered to be patentable until the mid-1980s and not really pursued until the mid-1990s. By this time, much of the prior art existed not as patents but as programs already operating in the market. As a result, the USPTO erroneously issued patents that did not meet the novelty and nonobviousness requirements. Therefore, by including the public in this examination process, the USPTO will gather more information about existing prior art and ensure that the patents are truly warranted in this art.