A Survey of the Peer to Patent Pilot Project

by McDonnell Boehnen Hulbert & Berghoff LLP

With the Peer to Patent project set to begin a third pilot period in October and to expand in scope,1 the time is right to review the status of this program and to introduce our clients and readers to the Peer to Patent process, its history and its future, and its advantages, and to encourage others to get involved with this promising project. During our research for this article, we interviewed many of the people that were involved in getting the project off the ground in mid-2007,2 and many of the people that guided the project through its second pilot period from 2008-2009.3 Included within this elite set of patent professionals is Manny Schecter, Chief Patent Counsel at IBM,4 Curt Rose, Director of Patents at Hewlett-Packard, 5 Scott Asmus, Patent Counsel at General Electric,6 Matt Rainey, Vice President and Patent Counsel at Intellectual Ventures,7 Adam Avrunin, Chief Patent Counsel at Red Hat,8 and Mark Webbink, ex-Senior Vice President and Deputy General Counsel at Red Hat and now Executive Director at the Center for Patent Innovations at New York Law School (NYLS).9 We hope you find this information useful and enlightening, and hope it convinces at least some to get involved with the project, and, as Thomas Jefferson put it, help “contribute[e] to a public good.”10

Background and Current Status of the Peer to Patent Project

There has been an enormous amount of debate over the last several years about a perceived decrease in the quality of patents issuing from the U.S. Patent & Trademark Office (USPTO), and consequently whether or not the agency is fulfilling its mandate under the Constitution of promoting the progress of science and the useful arts.11 Currently, the USPTO is struggling to deal with an overwhelming backlog of over 1.2 million pending patent applications.12 For the patents the USPTO does issue, there is a perceived decrease in quality caused, at least in part, by the number of undeservedly broad claims and by the number of findings of invalidity during patent reexamination and litigation. In patent cases that went to trial in 2009, nearly half of the challenges to patent validity, approximately 43%, were successful13 and over half of the validity challenges based on obviousness grounds were successful.14 The expense of litigating suspect patents, according to IBM’s Manny Schecter, “drains our economy of at least hundreds of millions of dollars per year.”15 USPTO Director David Kappos has also recently commented on how the growing patent backlog stifles job growth and the development of new businesses and products. 16 Any effort to examine more applications and trim the backlog, however, needs to be balanced with initiatives to ensure the issuance of higher-quality patents.

The Peer to Patent program was developed to address both of these seemingly countervailing problems, by improving both the quality and efficiency of patent examination by sourcing the shared knowledge of the global technical community,17 or “crowdsourcing.”18 Specifically, the Peer to Patent program’s aim is to involve third party experts residing outside of the USPTO in the search for, and submission of, prior art references.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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