Monday, March 02, 2009

The bean-counting of peer-to-patent hits Hamilton

Bean-counting, Hamilton, NJ-style.

In its self-evaluation, peer-to-patent has emphasized bean-counting, as opposed to actual impact. From an IPBiz post on July 1, 2008 -->

Peer-to-patent reported: Peer-to-Patent attracted more than 2,000 peer reviewers. The first 23 office actions issued during the pilot phase showed use of Peer-to-Patent submitted prior art in nine rejections.

From the detailed report:

Of those 23 applications, in nine cases (1 GE, 2 HP, 1 IBM, 1 Intension, 2 Microsoft, 1 Sun, 1 Yahoo!), the USPTO relied
directly on submissions by eight public members of the Peer-to-Patent project to issue final or non-final rejections of the application. In two cases (1 Intel, 1 Sun), the USPTO relied indirectly on Peer-to-Patent submitted prior art. In at
least one case, the examiner made and mailed his determination prior to reviewing the Peer-to-Patent submission.1
From a comparison of the Information Disclosure Statements, identifying references submitted by the inventor and
references submitted by the public via Peer-to-Patent, examiners seem to be more than twice as likely to use a Peer-
to-Patent-submitted reference than an applicant-submitted reference.

The peer-to-patent report misrepresented the concept of "material":

For example, in a GE application (20070174746) on “Tuning Core Voltages of Processors,” the Peer-to-Patent public
cited 3 references, while the applicant cited 10 references. The examiner used 1 reference each from the Peer-to-Pat-
ent project and the applicant in rejecting the claims for lack of novelty and non-obviousness. In other words, for this
application, 1/3 of Peer-to-Patent references were found to be material to the claims, and 1/10 of applicant references
were found to be material.

There was discussion of patent vs. non-patent prior art: In the examination of the first 40 Peer-to-Patent applications, peer reviewers cited non-patent prior art literature 55
percent of the time. In contrast, applicant references for the same patent applications cite non-patent prior art litera-
ture 14 percent of the time. The examiners’ own searches are even narrower. Bhaven Sampat, a professor at Columbia
University and co-author of the article “What To Do About Bad Patents”, states that patent examiners are only citing
non-patent prior art 10 percent of the time. In a recent study of 502,687 utility patents, examiners were found to account
for 41 percent of the citations to previous U.S. patents but only 10 percent of references to non-patent prior art in the
issued patent.

Also note: As with Wikipedia, where the visitor count far exceeds the number of editors who actually write the encyclopedia
entries, only 365 (18 percent) of the 2,000 peer reviewers who have registered on the Peer-to-Patent Web site are
considered to be “active” participants
who did the work of submitting prior art in connection with the public review of
the first 40 applications. (...) Of the 365, 104 came from IBM

See also

Is patenthawk snarky on peer-to-patent?

Of IBM, note that while 1 in 3 active peer to patent reviewers are from IBM, it is separately true that 1 in 5 IBM employees are in India. See

**UPDATE** yahoo news on 25 March 09. IBM to lay off 5,000 US-based workers

The layoffs were reported earlier by The Wall Street Journal.

The cuts will affect about 4 percent of IBM's U.S.-based work force, which totaled 115,000 at the end of 2008. In a sign of how quickly IBM is staffing up in emerging markets, last year IBM had nearly as many workers in Brazil, China, India and Russia — 113,000 — as it did in the U.S.

IBM now has about 400,000 employees worldwide.


Flashback on peer review

As background

Social patents

Also as background, from the Madisonian:

You have three years [in law school] to start to figure out how to make productive use of network technologies, so they don’t make productive use of you.

There is a silver lining. The sunny if not technically fun side of most of this is that law students can do themselves a world of good in the short term — and perhaps in the long term, but who knows — if they’re just a bit thoughtful about the network. If you work a little bit at Facebooking or LiveJournaling or blogging or whatever your medium of choice, you can create an online persona that’s a *good* complement to your “real” self.


There was a piece in the Christian Science Monitor by James Turner, favorably discussing peer-to-patent, among other things in patent reform.

LBE submitted a comment to CSM, including:

Of the allusion to George Washington ("it was probably just the kind of invention that President George Washington had in mind when he created the US patent system."), the U.S. Constitution gives Congress power over patents, and Congress created the patent system in 1790.

Of the allusion to the swing patent (US 6,368,227) this patent got issued to a child (Steven Olson) through the efforts of his patent attorney father (Peter Olson, reg. no. 35,308). There was a re-exam (90/006,289) which produced cancellation of the claims on July 1, 2003, long before the Supreme Court decision in KSR. This whole episode was a gimmick for a child.

Of Ravicher, one recalls his ill-fated effort on the WARF patents, wherein his references were found not enabled (meaning basically, science fiction) and the declarations he used were found conclusionary. See also

**Comment to CSM on 17 March 09-->

Of Viking's comment, --nor was Mr. Hopkins’ the first. --, Hopkins' patent WAS the first. Viking is correct that the current numbering system did not start in 1790.

Of Gilder's slight revision of George Scott and The Formula [Having said that there are certain patents that could be considered vital for national security that are being stiffled by the patent owners to protect their own interest (eg patent on large format Ni-Mh batteries for electric cars being held by a company controlled by a big oil company). ], one notes

#1. Claims in a valid patent go into the public domain at the end of the patent lifetime. Disclosure in published applications that don't mature into patents can go into the public domain sooner.
#2. The inverse of Gilder's scenario actually happened circa 1900 when electric car interests controlled the Selden car patent, and tried to suppress gasoline car makers, such as Henry Ford. The real issue wasn't electric vs. gas, but simply price fixing.
#3. There is a statute that allows the US government to alter patent rights when in the national interest. The statute goes back to World War I, and got recent play during the CIPRO/anthrax business as to Bayer, but was not invoked at that time. The patent pool with Wright/Curtiss was a direct result of government intervention, and actually hampered the ability of smaller innovators to enter the market.

See L. B. Ebert, The Impact of World War I on Present Day Patent Issues, Intellectual Property Today, p. 35 (February, 2005)


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