The ‘Wikifying’ of Software Patents

Will wikis help change how software is patented? The U.S. Patent and Trademark Office (PTO) is about to find out with a plan to collect public comment on the Web for select software patent applications.

Harnessing familiar social networking tools like community ratings, rankings and the processing of the data collected, combined with feedback from patent examiners, the PTO aims to provide patent examiners with existing technology (known as prior art) that may not have been discovered by the applicant or the examiner. The pilot program is scheduled to launch as early as May.

“We’re really excited about it. Community patent review gives us the ability to tap into the power of the Internet,” PTO Director John Dudas told “We think we’ll get better submissions [of prior art] and, ultimately, stronger patents.”

Dudas, the Bush administration’s point man on intellectual property issues, said much of the prior art on software is not contained within the PTO, but rests with private enterprise. “Many in the private sector have told us there is a lot of expertise out there,” he said. “We think [open review] will open up a lot of areas for us.”

The choice of software patents to lead off the pilot program is no accident. Software patents are among the slowest applications to be processed by the PTO and the most contentious legally. According to the PTO, the average time for approval of a patent application is 31 months; software patents average about 44 months.

Not only will the pilot program allow for peer review of software patents, participants in the program have agreed to publish their patent applications immediately upon submission to the PTO. Currently, patent applications are published 18 months after submission.

New York University Law School Professor Beth Noveck originally conceived the project about two years ago. The open source initiative on patent review quickly grew into a collaborative effort between the school, the PTO and a handful of leading technology companies, including IBM, Microsoft, Hewlett Packard, Oracle and Red Hat — all seasoned veterans of patent litigation wars.

“One of the core problems is that we have a patent system that can grant a 20-year monopoly based on closed databases,” Noveck said. “This an opportunity to use the technology available for government to make more informed decisions.”

Noveck, who specializes in intellectual property and constitutional law, called the project an opportunity for technology to democratize the system by opening the patent application process to all involved properties.

Dudas agreed.

“Right now, the public has two months to submit prior art, but they can’t make any comments. Currently under law, we are not allowed to use their comments,” he said. “[The new model] will waive all those concerns.” Rahan Uddin, the program’s project manager at New York University Law School, said the PTO will run the program, but the project team that includes an independent project lead with right-nine programmers has developed the software. The servers will be located in San Francisco.

While the actual launch of the program will be determined by the PTO, Uddin said systems are in place to handle to what he estimates will high volume traffic. A PTO spokesman said no official announcement of the launch has been made, although sometime this spring is likely target date.

As for using easily available social networking tools, Uddin said there was no reason to reinvent the wheel. “Our inclination was to look out there and see what was working well and not start from scratch.”

Uddin also stressed one of the key elements of the plan is for the immediate publication of patent applications by the program members.

Computer Associates, General Electric, Hewlett-Packard, IBM, Intel, International Characters, Microsoft, Oracle, Out of the Box Computing and Red Hat have already agreed to have their patents examined under the new model.

“The software will allow for an on-going review of the patent application. There’s a lot of prior art outside the PTO,” he said. “This should help expedite the system and patents will be granted quicker.”

In an e-mail statement to, Microsoft said: “We expect to see the development of several improvements to the patent review process through this peer review pilot project. Among those benefits are ensuring patent quality while patent quantity is increasing, minimizing the risks of abusive patent litigation and increasing the accessibility of patents for individual inventors and small companies.”

Noveck praised the PTO for embracing the project.

“They really deserve an enormous of credit for their openness and willingness to try this,” she said. “This is a very significant experiment and they were open to change their fundamental process.”

News Around the Web