A New Commons to Improve Patents: The Community Patent Project

Commons principles are popping up in the most unlikely places these days. A few days ago, IBM (!) announced the Community Patent Project, an innovative effort that plans to use online networking to establish an online peer review process for patents before they are granted. The idea is to elicit the dispersed expertise of the public and interested experts so that patents — monopoly grants to private inventors — won’t be handed out like party favors, but will instead be based on a more rigorous review process. (Thanks to David Morris for alerting me to this initiative!)

From my brief review of the project, I think it holds great promise in remedying the egregious defects of the current, antiquated system of patent review used by the U.S. Patent and Trademark Office, whose small corps of underpaid and overwhelmed patent examiners wade through 350,000 patent applications a year and a backlog of 600,000.

An excellent paper has been published in connection with the project. “‘Peer to Patent’: Collective Intelligence and Intellectual Property Reform,” by Beth Simone Noveck of NYU Law School, describes the problems of the current patent system and the appeal of collaborative review of applications. She asks:

What if we could make it easier to ensure that only the most worthwhile inventions got twenty years of monopoly rights? What if we could offer a way to protect the inventor’s investment while still safeguarding the marketplace of ideas from bad patents? What if we could give the scientific community a voice in determining whether an invention was truly novel or obvious? What if we could make informed decisions about the scientifically complex issues posed by patent law before the fact?

Instead of issuing patents without public consultation, and issuing overly broad patents (one-click online shopping) or stupid patents (swinging on a swing sideways — no joke!), the Patent Office could leverage the diverse expertise of the entire world in its deliberations. Noveck explains how a “peer-review online system” could help the patent office locate prior art that might affect the patent application, and identify experts who could offer useful advice.

It’s tempting to regard this project as an arcane application of networking technology. But in fact, it embodies larger principles of importance to the commons. Like wikis, the blogosphere, open source software development, and other genres of collaborative expertise, the Peer to Patent Project shows the practical value, efficiency and fairness of an online commons regime. As Noveck puts it: “It [the Peer to Patent Project] may enable us to contribute to the design of other social systems that depend upon the collaboration of experts across a distance, providing ways to improve policymaking, deepen democracy and rethink our fundamental assumptions about governance.”