Lending a Hand: The Need for Public Participation in Patent Examination and Beyond

Abstract

Under current patent practice, a single examiner, often overworked and with limited resources, must review an invention for patentability, investigate prior art references, and pass judgment on its novelty and nonobviousness in a very compressed timeframe. As a result of these pressures, "bad" patents are being issued with increasing frequency, especially in emerging technology fields such as software and biotech where the USPTO lacks a sufficient number of competent examiners for the workload. In particular, many of these examiners are simply unable to conduct a thorough prior art search within the timeframes given, and this problem is only exasperated with increased complexity of the inventions. In response to this problem, Beth Noveck has proposed the Community Patent Project, where third parties will be able to suggest prior art references, review those submitted by others, and ultimately produce a document that examiners can use to supplement their own prior art searches. Following a model popularized by open source programming and community-driven networks such as Wikipedia, this Project will help to assuage some of the pressures felt by the examiner, while improving the quality of the searches performed and, hopefully, produce more complete and valid patents. While this Project will be beneficial as a "proof of concept", this Comment questions whether the Project will ever be viable on a larger scale. It then suggests that with a few tweaks, such as a more robust treatment of foreign languages and an improved incentive system, the Project could truly realize its goal of "globalizing" the patent examination process.