In “Peer to Patent” Noveck suggests that patent examiners often have neither the time nor the resources required to conduct a thorough evaluation of a patent’s novelty or investigation into potentially applicable “prior art.” As a result, she claims that too many patents are granted upon an insufficient basis (termed “low quality” patents), thus impeding progress and causing needless litigation when companies are accused of violating the patent and must demonstrate that the patent should not have been granted. Her proposed solution is to adopt the “Wikipedia approach” so that anyone can contribute ideas, including the presentation of prior art, novelty and utility. She suggests that the advance in information technology sharing makes public participation in the patent review process desirable and efficient.
One obvious problem, which Noveck begins to anticipate but whose importance she subsequently minimizes, is that opening the patent process to public review would likely result in teams of scientists from opposing companies each attempting artfully to trash their competitors’ patents. For example, a patent examiner may be presented with highly deceptive arguments intended to persuade him that a competitor’s patent has a basis in prior art when in fact it does not. She argues that “if people produce information that is useful to the examiner, their personal agendas are irrelevant” (156). What she does not fully acknowledge is that not all “information” is created equal. In particular, the language used to convey a particular set of “facts” may well be biased or intentionally deceptive, further obfuscating the matter rather than clarifying it. In such cases, it may well be that the patent examiner would need more rather than less time to evaluate the patent, and he may not be the most adept person at making such an evaluation in the first place.
Noveck calls this potential flaw “unproblematic” by simply building into her model a requirement that contributors sign an affidavit affirming that they have no conflict of interest. This idea seems much more effective in theory than in practice. The people most eager to make contributions will be exactly the people whose stakes in the outcome are large. Often with sizeable resources at their disposal, we can be confident that they will find creative ways of circumventing this requirement, by bribery, deception, or otherwise.
A system is only as good as its capacity to enforce its requirements. If the contributors offer their “opinions” it would be extremely difficult to distinguish a good faith but differing point of view from profit based advocacy. Likewise, prosecutions of contributors perceived to be biased (rightly or wrongly) despite their affidavits would drive from making any comment those who could not rely upon well-financed legal teams to come to their defense.
Would there not be a substantial danger that the battle of well-financed parties in interest is merely shifted from the Courtroom after the patent is granted to the examiner’s office before the grant? If the examiner is now overworked, will not the fog of patent war resulting from too much information likewise gum up the process, and perhaps much more?
If we are going to require affidavits of no conflict of interest, set up elaborate structures and weed out processes to eliminate those who try to pervert the process for financial gain (i.e. have a competing patent denied, do harm to a competitor’s company, etc.) why is it not much more efficient just to hire more competent examiners and to expand the time they have to examine the patent and the resources which they have available? In the end, it seems that trying to correct the flaws of the current system within its existing structure may be a much easier task.