Patent Reform via Open Source

Big news in the patent world today: the USPTO will be partnering with the open source community to improve patent quality. Three key changes will be introduced:

1. Open Patent Reveiw seeks to form communities around specific topics and areas to aid patent examiners in determining application validity. No longer will prior art be determined only by the applicant and the examiner. Anyone can participate, and anyone will be able to receive email alerts or RSS feeds about new patents that they can then provide input on.


2. Open Source Software as Prior Art. OSDL and industry leaders in the open source world will build a database of existing open source software that is searchable so that it can legally qualify as prior art.


3. Patent Quality Index. Patents and applications will be assessed and evaluated with numeric scores to quantify their quality. This, again, will be an open process, with anyone able to participate, and has some potentially broad implications. Once such an index is in place, I could envision its scoring having a positive effect on litigation (low-scoring patents could be perceived as having higher chances of being overturned in court) and thus bring some form of market-pricing to royalties where now only monopoly pricing exists (low-scoring patents would have downward pressure on licensing pricing).

Even though IBM is pushing these reforms, it is hard to see how they benefit large corporations any more than they benefit small, independent inventors. Raising patent quality helps everyone, from the independent inventor to big companies. Better patent quality makes for increased certainty regarding patent claims, and reduces the number of bad patents that impede innovation and remove competition. And by introducing a numeric scoring mechanism for granted patents, the USPTO is formally admitting something that everyone has known all along: not all patents have identical quality.

The open nature of all three proposals is revolutionary. Currently, you (as a third party to the examiner and applicant) have no say in the process, no voice in the evaluation of prior-art, non-obviousness, or general quality. All three of these reforms are open, and anyone will be able to participate. That kind of democratization can't be a bad thing.

Further details can be found in several outlets, including news.com, LinuxElectrons, and Peter Zura.