To Unclog the Patent System, the Patent Office Says Yes to Crowdsourcing

Our government can be quite oafish and freakishly slow, but for those of you who thought our sleeping giant was incapable of progress, here’s something to smile about. The United States Patent and Trademark Office (USPTO) has initiated a program to allow third parties to weigh in on the patent application process. Under the new system, third parties can submit evidence of prior art to squelch frivolous patent applications, rather than having an application languish for months in front of a patent examiner, or worse, have an invalid patent be granted. Welcome to the new and improved crowdsourced Patent Office.

The new rule, which went into effect under the Leahy-Smith America Invents Act (AIA), allows regular Joes to submit relevant materials to patent examiners in any given examination. Basically, the USPTO says the new rules will streamline the patent process because it allows Company B to show that Company A’s proposed patent for a new microprocessor is invalid because B already invented it.

Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos stated that “By introducing third party input into the examination process … we’re able to expand the scope of access to prior art in key areas like software patents. This will improve the examination process and advance the Administration’s ongoing commitment to transparency and open government.”

After the skirmish between Apple and Samsung over the summer (which broke records on amounts of evidence, claims, experts and potential fees), businesses are now, more than ever, interested in keeping patent battles out of the courtroom. Litigation is expensive, acrimonious, and can hurt a company’s image. And when you get handed a BILLION dollar judgment, that doesn’t feel good either. The new rules would theoretically have allowed Samsung or Apple to preempt the other’s patents before they were granted, although there’s no reason to think that arguing prior art in front of the USPTO would be any less contentious than arguing before a court.

One of the main criticisms of the current system is that too many frivolous and silly patents are granted and it clogs up the marketplace. For example, an apparatus for simulating a High Five (Patent number US5356330); or a Santa Clause Detector (US5523741); or this Anti-Eating Face Mask (US4344424); or, and seriously, a Bird Diaper (US5934226).

But the real concern these days is from tech companies. The argument is that an undeserved and over-broad patent to one company can mean total market domination. Much of what is created in the tech world is patentable, and that includes Microsoft’s Computer Shut Down interface (US 7788474) or Amazon’s patent on making an internet purchase (US5960411). With so much at stake, competitors and inventors alike have an interest in making sure competing or over-broad patents aren’t secured, especially when big tech firms are buying up as many patents as possible to fill out their war chests

The idea began with Stack Exchange, an online forum where experts could discuss the merits of various patents. Now, those very experts will be able to collaborate to make sure only truly patentable things get protection. The implementation of the crowdsourced system will allow patent experts, and industry insiders to stop broad or frivolous patent applications from clogging the market, and help reduce the backlog of applications. The end goal is to see true inventors and owners gain the patent protection they deserve, without having to spend millions of dollars in legal fees years down the road. Oh, and maybe it will put a damper on the ludicrous smartphone wars.