Peer-to-Patent - Criticisms

Criticisms

Criticism of the Peer to Patent project range from its goals to its likelihood of success. For instance, criticisms can be found in comments posted to two articles favorable to Peer To Patent on the well-known Patently Obvious (Patently-O) blog: articles about the announced launch and the actual launch of the pilot.

Here is a sampling of objections aired in various forums:

• The patent system is too fundamentally out of kilter to be fixed by examining and rejecting individual patents.
• By reviewing patents that belong to categories some people think do not deserve patents (notably software), Peer To Patent implicitly endorses the existence of such patents.
• The problem with many bad patents does not involve the existence of prior art, but a definition by the patent office of "obviousness" that is too forgiving, and therefore allows obvious patents to be approved because they are not precisely the same as prior art.
• The participation process that works for free software and Wikipedia will not work for the patent system because it presents steep challenges of its own. Few people in the general public understand the unique use of language in patent applications or the stages through which an application passes. The current pilot has drawn masses of participants because of its novelty and because computer-related patents are a particularly contested policy area, but this is no guarantee that similar participation will be seen in other areas and over a long term.
• Potential infringers will be afraid to review patent applications because, if the patent is granted, the inventor could successfully argue in court that the infringer knew of the scope of the patent and therefore engaged in wilful infringement, potentially subjecting the infringer to triple damages. This assumes that assurances from the USPTO and Peer To Patent that reviewing an application does not constitute knowledge of the final patent are invalid and will be rejected in court.
• Third parties will be afraid to help overturn a patent application for fear that the applicant (particularly if it's a large company) will retaliate later.
• There are too many patent applications for the public to review every one adequately. Those who have the time and expertise to look for prior art will take their chances, waiting for the patent office to approve patents and then challenging the patents at the patent offices or in court.
• Third parties who submit prior art during the patent application cannot argue in favor of that prior art during the prosecution of the patent (the discussion between the examiner and the applicant). During this ex parte discussion, the applicant has a definite advantage in arguing his or her case. Third parties will therefore wait and reserve their prior art for court cases where they have an equal chance to argue their point. This argument rests on the premise that third parties are willing to assume the hundreds of thousands (or often millions) of dollars in costs that a court challenge requires.
• Large companies will devote resources to denying the applications of their competitors, and small companies will not be able to marshal the corresponding resources to knock out the patents of large companies. This argument assumes that the general public will not step up to the responsibility of reviewing patents.