Thursday, June 30, 2011

My letter to the USPTO

Did you respond to the USPTO with your comments on streamlining the patent reexamination process? Comments were due yesterday, June 29. If you did not send your comments, I encourage you to contact the USPTO anyway and make your voice heard. As a government institution, the USPTO listens to public input.

Here is my letter to the USPTO:

My comments are not for patent reexamination, per se, but suggestions to improve the review process before a patent is granted. Under the current procedures, a patent application is reviewed by a USPTO examiner. In brief, if no prior art is found, the application is moved forward for approval. If prior art is later discovered, the burden is on the public to provide evidence and petition for reevaluation. The reevaluation process may be lengthy, taking considerable time from USPTO examiners, the patent applicant, petitioners, and (at times) the US courts.
I propose that a new process be implemented during the review process, to allow for broader review for prior art, and for tests of "obviousness".

One such process is "community review". The USPTO examiners first investigate the patent application. As they do today, examiners may choose to invalidate an application, or pass it to the next step in approval. In this next stage, the examiner pro-actively seeks experts in that field to review the patent application.

Different from public review, community review may be under a non-disclosure agreement or some other privacy arrangement. The community review helps to to determine what might be "obvious" to someone working in the field, rather than what seems "obvious" or not to a patent examiner, who may not be as familiar with the technology in question.

This method of community review or "citizen review" is employed effectively in other parts of the world. This review permits knowledgeable experts across all technical fields to weigh in on the merits of a new application and submit pertinent information while it is still under review, not just after a patent has been issued. This helps patent examiners to more effectively sort worthy inventions from unworthy ones.

I believe a community review process would have identified obvious software methods such as:
  • The "doubly-linked list", which has been part of computer science curriculum for decades. (7,028,023)
  • Expiring old items from a list, as the list is processed (5,893,120)
  • The progress bar (5,301,348)
  • A browser pop-up window as you leave a web page, which is also used on the USPTO web site to issue surveys (6,389,458)
  • Purchasing content from a phone application (7,222,078)
  • Identifying people in a digital photo (7,970,657)
Streamlining the review process before a patent is granted, through a community review, will result in fewer challenges to patent awards, and so fewer patent reexaminations.

Thank you,

(name)

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