These will show whether or not the invention for which a patent
is sought is already in the public domain.
The USPTO has been criticised in the past for the quality of its
patents, particularly in the software field. Responding to the
criticism, USPTO representatives met with members of the open
source software community last month to identify how to get the
best prior art references to the examiner during the initial
examination process.
“For years now, we have been hearing concerns from the software
community about the patent system,” Under Secretary of Commerce for
Intellectual Property Jon Dudas said. “It is important that those
in the open source community are joining USPTO to provide resources
that are key to examining software-related applications.”
The group, consisting of the USPTO, IBM, Open Source Development
Labs (OSDL), other members of the open source software community
and academics, agreed to implement three initiatives.
Firstly, according to IBM, the group will set up an Open Patent
Review. This will seek to establish an open, collaborative
community review within the patenting process to improve the
quality of patent examination. The program will allow anyone who
visits the USPTO website to submit search criteria and subscribe to
receive regularly scheduled emails with links to newly published
patent applications in requested areas.
The hope is that it will encourage communities to review pending
patent applications and to provide feedback to the Patent Office on
existing prior art that may not have been discovered by the
applicant or examiner.
Secondly, the group plans to set up a project that will
establish open source software – with its millions of lines of
publicly available computer source code contributed by thousands of
programmers – as potential prior art against patent
applications.
OSDL, IBM, Novell, Red Hat and VA Software's SourceForge.net
hope to develop a system that stores source code in an
electronically searchable format, satisfying legal requirements to
qualify as prior art.
As a result, says IBM, both patent examiners and the public will
be able to use open source software to help ensure that patents are
issued only for actual software inventions.
Finally, the group is to set up the Patent Quality Index – a
unified, numeric index to assess the quality of patents and patent
applications. The effort will be directed by Professor R. Polk
Wagner of the University of Pennsylvania with support from IBM and
others and will be an open, public resource for the patent system.
The index will be constructed with extensive community input,
backed by statistical research and will become a dynamic, evolving
tool with broad applicability for inventors, participants in the
marketplace and the USPTO.
According to OSDL General Counsel Diane Peters, "These important
efforts among open source developers, vendors, end users and
government to improve patent quality will reduce potential legal
threats to open source developers and businesses.”
Dr John Kelly III, IBM senior vice president of Technology and
Intellectual Property, agreed.
"IBM believes that patents should be granted only for ideas that
embody genuine scientific progress and technological innovation,"
he said. "Raising the quality of patents will encourage continued
investment in research and development by individual inventors,
small businesses, corporations and academic institutions while
helping to prevent over-protection that works against innovation
and the public interest."
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