Some of you may know that the PTO is implementing a new ‘community patent review’ pilot project later this spring. Applications will be published on a website and the general public will have a chance to identify prior art and vote on its relevance to the pending application. The public input will then be given to the Examiner to use. (The Examiner will do his own search and will not be required to use the community-identified art).
The initial pilot will be restricted to 250 volunteer applications related to software and technology inventions (TC 2100). Several companies have already volunteered their applications, including GE, HP, IBM, INTEL, M$, Oracle, and others. Some of these same companies have also volunteered employee time to help ‘examine’ the applications.
Volunteer applications will be quickly published (free early publication) and the public will be invited to submit prior art and commentary for four months. After that, the application will be taken out of turn and examined first. There will be a public meeting at the PTO on March 12 to discuss the pilot program.
Let me know if: (1) your client is interested in participating; or (2) you have comments on the program. (email@example.com)
I see a few reasons why companies may fear participating in the program: (1) funny or erroneous patent applications may be seen as jokes; (2) the publicity may focus the public on the company’s weak and potentially vulnerable patent portfolio — something that may reflect on the quality of R&D; (3) a perception that even if the patent eventually issues, public comments such as “this patent is clearly obvious. . .” could potentially hurt a patentee later-on during litigation; (4) a patent that may otherwise pass through the PTO may be blocked because of prior art found during the community review; and (5) this deviation from the norm could lead to more expense during prosecution.
Some of these same reasons may lead other more aggressive companies or individuals to give the community review process a try: (1) the patents will receive some publicity that may improve the public’s perception of the company’s patent portfolio; (2) a patent that issues should be ‘stronger’ and more likely to be upheld in litigation — much like a patent that has been successfully reexamined; (3) speed.
Leave your comments below regarding reasons for/against participating in the program.