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Patent Office officially announces pilot plan for submission of prior art by third parties
June 07, 2007

The USPTO yesterday officially announced the institution of a pilot project concerning "public submission of peer reviewed prior art." As we previously blogged on March 5 and February 28, the pilot project will be voluntary, and limited initially to the "computer arts." It will be handled on the Peer-to-Patent website, developed by the Community Patent Review Project at New York University Law School for this purpose.

In short, the patent applications will be analyzed by members of the public "in an organized manner using Internet Peer Review techniques." The result will be a list of up to ten of the top-rated prior art documents, which will then be submitted to the USPTO pursuant to a waiver of 37 C.F.R. §§ 1.99 and 1.291. Comments describing how the documents are relevant to the application's claims are also submitted, so the comments will likely provide the patent examiner a blueprint for an appropriate office action.

The program will run from June 15, 2007 to June 16, 2008. The USPTO will then assess how effective the process was, and decide whether to continue the project, expand it to more classes of applications, or discontinue it. Of course, if Section 9 of the Patent Reform Act of 2007 becomes law during the pilot, third parties will have another avenue to submit prior art to the USPTO.

It will be interesting to see how well this process works. It is contingent upon experienced members of the public essentially donating their time to help the Patent Office perform its function. It was likely a smart decision by the USPTO to choose the "computer arts" for the pilot: the large open source community means that there are already many members of the public donating their time to various projects, so the level of volunteerism is likely to be relatively high, at least compared with other fields. Also, many individuals in the open source community also dislike the idea of software patents (or at least how they are sometimes used), giving individuals already predisposed to volunteering their time a cause around which they can rally.

The questions, of course, are whether the level of interest in the process will be sustained over the long term when and if the USPTO opens up the process to all applications instead of just those who volunteer for the review. Also, an issue will be whether the same process will work in other technology areas if the USPTO decides to expand the program.

Update (6/7): The USPTO has now issued a press release on the program.

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