Mob Rule for Patents?
According to the Peer to Patent Project, "The patent system needs our help. . . to ensure that only worthwhile inventions receive the patent monopoly. Currently, underpaid and overwhelmed examiners struggle under the backlog of applications. Under pressure to expedite review, patents for unmerited inventions are approved."
With sponsorship from IBM, and leadership by New York Law School Professor Beth Noveck (author of "A Democracy of Groups" and “Peer to Patent: Building a Community Patent Review Process” ), their Community Patent Project seeks to create a online system for peer review of patents to "enable innovation experts to advise the Patent Office on prior art as well as to assist with patentability determinations. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the 'wisdom of the crowd' – or, more accurately the wisdom of the experts – to complex social and scientific problems. This could make it easier to protect the inventor’s investment while safeguarding the marketplace of ideas."
Or it could simply turn into an ochlocracy for patents. Sure, the mob might be a great source for identifying prior art, especially if U.S. patent applications were published for opposition as some have suggested. And expert testimony can even sometimes aid in determining the factual underpinnings of patentability. But shouldn't these ancillary examiners at least get some legal training before they "assist with patentability determinations." And shouldn't patent applicants have the right to challenge the factual basis of any expert's contribution to the process, much less object to any use of an improper legal standard for determing which inventions are "not worthwhile" for patentability.