BNA (subscription service) is reporting that the PTO has put the Peer-to-Patent Program that it touts as being “highly successful” on hiatus. The program began as a pilot project in 2007 and was extended for a second year last summer. Last week, the program issued its Second Anniversary Report.
The Peer-to-Patent Program is a way for applicants to submit their patent applications to have them posted on the program’s website. Volunteers who have registered to review the applications can then submit prior art that they consider pertinent to the patentability of the application. This prior art is then forwarded to the examiner who ultimately examines the case. The examiner can decide whether to use the prior art forwarded from the program in addition to doing his own search.
For the first year, the program was limited to technology center 2100, which covers computer architecture, software, and information security. In the second year, the program was expanded to include patent applications in class 705, business methods and e-commerce.
According to the report, 71 applications were included in the program during its first year and 187 applications during the two years. The program includes 2,600 registered peer reviewers who can submit prior art on the applications. The largest number of applications and reviewers hail from IBM, Microsoft, Hewlett-Packard, Sun, Intel, and GE.
So far, only 66 Office Actions have been issued on applications that were included in the program, with only 18 of those where the examiner used prior art submitted under the program. Thus, in 27% of the peer-reviewed applications that have had Office Actions issued, the examiners have found the submitted prior art to affect the patentability of the pending claims of the application.
Will the Program Be Revived in the Future?
The demise of Peer-to-Patent is based on a lack of funding during the economic downturn. The program’s funding had come largely from corporate and foundation grants, with more than half coming from Omidyar Network. The PTO’s economic woes keep it from picking up the tab for the program. David Kappos of IBM, who has been nominated to be the next Director of the PTO, is an advocate of Peer-to-Patent, so it’s certainly possible the program will be revived if the funding can be worked out.
But should it?
Peer-to-Patent and the PTO have been touting the merits and benefits of the program since before it was implemented. In theory, it does seem to be a good idea. Who better than competitors to have knowledge of the best prior art to assist the PTO in examining patent applications?
In reality, the numbers are pretty paltry. Given the huge backlogs and pendency times in the two art units involved in the program, clearly 187 applications in two years is a very small percentage. If the program is so great, why aren’t many more applications involved? One would think most applicants would want their applications in the program.
The 2,600 reviewers sounds like a good number, considering the 187 applications involved. What happens if the number of applications goes to 1,870 or 18,700? Would that many more reviewers join to participate? Only a small percentage of the reviewers are submitting prior art. The report notes that the average reviewer spends about two hours reviewing the application and those that did participate generally reviewed two applications.
Perhaps there is a way to make a program like Peer-to-Patent work. Patent applicants would need stronger incentives to participate, such as the chance to move up in the examination queue or the like. Reviewers may also need to be incentivized with a small reward to increase participation. The current project is simply too small and the participation too meager to warrant the PTO to try to continue or to revive it given its current financial situation.