STIET SEMINAR, University of Michigan March 23, 2006 “Peer to Patent”: Community Patent Review

1. STIET SEMINAR, University of MichiganMarch 23, 2006“Peer to Patent”: Community Patent Review Prof. Beth S. Noveck, New York Law School Director, Democracy Design Workshophttp://dotank.nyls.edu/communitypatent http://dotank.nyls.edu

2. AGENDA • From Centralized to Collaborative Expertise • Patents: A Parade of Horribles • The Patent Process and the Goldilocks Dilemma • The Peer to Patent Community Reform Proposal • Rating, Reputation and Expertise

3. Bureaucratic Expertise Based on Outdated Technological Assumptions Our legal administrative structures have been constructed around certain key beliefs: Our legal administrative structures have been constructed around certain key beliefs: • Centralized administrators have the best access to information • Expert bureaucrats are the only way to produce dispassionate decisions • Making decisions in the public interest requires keeping the public at bay • Agencies can “do science” as well as law • Despite APA, public consultation is difficult, time consuming and produces little • Innovation demands secrecy

4. From Centralized Administration to Collaborative Expertise: A Fundamental Rethinking

5. From Centralized to Collaborative Expertise • What if, instead of one examiner, an application had “1000 examiners”? • What if the community collaborated on developing repositories of prior art for its area of expertise? • What if persons skilled in the art could comment on how novel and non-obvious an invention actually was? • What if a wider array of people had a simple way to put forth prior art before the patent was approved? • What if we could review applications faster and better? • What if we could make public participation in policymaking a reality?

6. The Challenge • Patent examiners • labor under 600,000 application backlog • have fewer than 18-20 hours for initial application review • lack time for training in new and advanced scientific subjects • do not have access to a wide-enough array of informational resources • must contend with poorly drafted applications and often uncooperative applicants • Cannot leverage the community of experts to promote the progress of useful arts

7. Wikipedia - The User Created Encyclopedia Wikipedia uses collaborative editing software (known as a “wiki”) that enables people to draft together. Over 1 million entries in English alone 200+ languages

8. Example: Wikipedia - The User Created Encyclopedia These 1 million entries are largely managed by 700 people 10 percent of all users make 80% of all edits 5 percent of all users make 66% of edits Half of all edits are made by just 2 1/2 percent of all users Open, easy to use interface makes it possible for people to contribute.

9. Organization by the Community

15. Meta-moderation system allows users to rate and rank each other’s postings

16. Water Skipping Article Incorporating Elliptical Outline and Hollowed Interior Core

17. Combined Coconut-Shaped Drink Container and Coin Bank

18. A Parade of Horribles • Peanut Butter and Jelly Patents • Patent Trolling • Underpaid and Overworked • Ex Post Patent Law and Policy Reform

19. Congress may not “enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby.” -Graham v. John Deere (1966)

20. The Do Tank Digital Institution Design: The New Case Method • Three Fundamental Shifts • Network Technologies and New Ways of Wielding Power • The Visual Interface and Visual Deliberation • Lowered Transaction Costs • Law of E-Democracy • Regulation of Human Behavior • Creating Governance and Social Order • Normative Design

21. A Solution: Exploit New Technology to Tap Collective Intelligence of the Community of Experts We have arrived at a moment when it is possible to explore the option of “peer review” for patents Why Now? Five factors converge: • Political and technological moment is ripe • Citizen consultation practiced by all agencies; peer review in widespread use in government (e.g. NIH, EPA, NSF) • Most US patents applications are published after 18 months • Social reputation, social networking and social recommendation technology • Experience with large scale collaboration: Wikipedia, Slashdot, Yahoo Answers, Open Source Programming suggests scaling of peer review

22. Design and Pilot an Online System for Peer Review of Innovation http://dotank.nyls.edu/communitypatent

23. Patent Examination Process

24. Patent Examination Process

25. The Goldilocks Dilemma • Too much and too little prior art • Finding just right prior art • Combining relevant prior art

26. Design Principles: Building Communities of Practice • Simple to use • Clear goal • Modular tasks • Divvying up of roles • Self assignment • Status and rewards • Social reputation

27. Proposal Basics: “With Many Eyeballs All Bugs are Shallow”Community submission of prior art Phase I: Novelty Determination and Locating Prior Art Ideally-suited to peer review because it enunciates a clear goal, requires only minimal participation and lends itself to self-selection on the basis of expertise. An expert knows instantly whether an invention is reminiscent of earlier work. Designed right, the software can make participation for a network of scientific and innovation experts clear and easy. • Create online system to publish patents to expert peer reviewers • Enable participants to sign up for specific categories of art • Experts to self-select participation • Solicit wide array of expert participation • Make logon easy • Allow participants to rate and rank prior art

29. Proposal Basics: Citizen JuriesConsult the community jury as a proxy for the PHOSITA Phase II: Obviousness Determination The obviousness determination could be aided by a small group of relevant experts acting as a consultative citizen jury to aid the examiner. Members of the expert community evaluate and rate each other’s participation. The patent examiner coordinates the back-and-forth colloquy with the inventor. • Make logon harder, e.g. credit card: persistent pseudonymity • Create small group panels to assess prior art and consult with examiner • Make participation practical and short • Use reputation software to enable the community to rate its own experts

31. Workshop Goals: Moving from Proposal to PrototypeBreaking down into manageable questions. Embed the process in design. • • Expertise - how to identify expertise? ePHOSITA? • • Managing Inputs - how to make participation and feedback manageable? • • Incentives, Abuses and Impediments - how to create incentives for participation ? • • Translating Statutory Standards into Online Practices - how to design the review process? • • Addressing the Examination Process - how to adapt examination to outside input? • • Steps to Implementation - how to design a pilot? how to evaluate?

32. Rating and Reputation • What role does rating and reputation play in building this community of practice? Is it necessary or useful? • Do we want experts to rate and rank prior art? • Do we need peers to rate? • Each other objectively • Each other subjectively • Each other’s participation • In such a high stakes game, can an effective peer review community emerge? • Can such a system be engineered or must it emerge?

33. Timeline Realize Opportunities for Expert Consultation From Proposal to Prototype: Spring/Summer 2006 Solicit input via WIKI and Web Solicit input through workshops and consultation Workshops Feb-May 2006 Pilot Fall 2006 Draft Posted Jan 2006 Refining Proposal April-June 2006 Evaluation