The U.S. Patent and Trademark Office is notoriously undermanned and overworked. It can take more than two years to get a judgment on whether an application is unique and not obvious. And sometimes the office’s decisions can be suspect. Take, for example, granting a patent to Amazon for its ingenious one click shopping idea or to Smucker’s for the crustless peanut butter and jelly sandwich. A few years ago, Beth Noveck, a law professor at New York Law School, came up with an idea to open up the process to the public, online, so that experts and other inventors could help patent examiners determine which applications deserve approval. The Peer to Patent Project, launched in 2007, is now being evaluated to become fully institutionalized into patent office bureaucracy. Noveck is now the Deputy Chief Technology Officer for Open Government in the Obama Administration and has written a book about her experience creating the Peer to Patent Project, titled Wiki Government: How Technology Can Make Government Better, Democracy Stronger, and Citizens More Powerful. Beth, welcome to OTM.

BETH NOVECK: Thank you. Glad to be here.

BOB GARFIELD: Tell me how the patent system traditionally has worked.

BETH NOVECK: So traditionally when an applicant puts in for a patent application and requests from the patent office a grant of 20 years of monopoly rights — in other words, 20 years to exclude all others from making, using or selling that invention — the application goes to a patent examiner who has approximately between 15 and 20 hours to review the application, do all the background research and write up his or her findings to determine if an application truly deserves a patent under U.S. law. And, you know, I don't know about you, but in 15 hours, I can spend 15 hours at work staring out the window sometimes. It’s not a lot of time to determine whether there is nothing else out there like this application such that it’s so new and such an improvement over what came before that it truly deserves to get a patent.

BOB GARFIELD: Okay, so how does a peer to patent system improve on the status quo?

BETH NOVECK: So what the peer to patent system does is it recognizes that the best expertise isn't always the official who sits in the patent office or who sits in any government agency. The person who has the best knowledge about, let's say, a new database technology or a new cancer curing drug is going to be the person who’s working in that industry. It’s the graduate student who is writing his or her Ph.D. around that topic. And so if we can tap the intelligence and expertise of those people, we can both speed up the review, but, more important, we can get the best information available so that we're only enacting the best quality patent applications that truly deserve a patent.

BOB GARFIELD: In essence, you’re crowd sourcing patent research.

BETH NOVECK: Right. The exciting thing, and I think the thing that’s different than the way some people think about crowd sourcing, is we're not simply leaving it up to the crowd to determine by mob rule whether an application deserves a patent. What we're doing is looking for information to help inform a considered process that will, in the end, be decided by the official in Washington who can weigh all the information coming in and make a considered judgment in the public interest.

BOB GARFIELD: Okay, so a Wiki, in many ways, is only as good as the last person to touch it. And what happens if the last person to touch the Wiki on a given application is someone who has a financial interest in a new patent not being awarded?

BETH NOVECK: It’s an excellent question and one that we thought long and hard about when we designed the process. So, in fact, it’s not a Wiki in the way that we're familiar with Wikipedia, where even in Wikipedia there are rules to prevent the kind of gaming you’re talking about. What this is, is an open process that solicits very specific forms of information from people — in other words, earlier literature or products or inventions that may go to show that a patent application isn't truly new asks the person submitting it to actually provide bibliographic information, you know, who the author is, when it was created, what date it was created, but does this all in an open way so that other people who've signed up to review the patent application can actually rate those submissions up or down, in the sense of saying, is it relevant to the patent application at hand and how does it relate to the specific claims of the patent application?

BOB GARFIELD: But the fact that IBM and Microsoft have so enthusiastically applauded your project makes me a little nervous because they're big patent seekers themselves.

BETH NOVECK: Well, they're also among those who get sued most often and hauled into court for patent infringement. So what we're trying to do here is to try to get this information into the process earlier to insure that we're making better decisions. I think this example really applies across the board outside just the area of patents. When any government agency enacts a rule, whether it’s to decide about the number of peanuts in peanut butter or the amount of asbestos in the air or water, we tend in government to draft those rules.

BOB GARFIELD: And then it’s published in the Federal Register.

BETH NOVECK: Yeah, that is true.

BOB GARFIELD: And public comment is invited. Are you suggesting that that process really is outdated?

BETH NOVECK: We're getting that input too late in the process to inform the writing of a rule. When we publish something in the Federal Register, we tend to reach lawyers in Washington, Beltway interest groups. I think that most of the techniques that we have now are outdated and inadequate to really match up to what’s possible to do today in terms of engaging and involving people in their government to share their expertise and experience.

BOB GARFIELD: Beth, thank you so much.

BETH NOVECK: Thank you for having me. It’s been a pleasure.

BOB GARFIELD: Beth Noveck is Deputy Chief Technology Officer for Open Government in the Obama Administration and teaches law at New York Law School. Her book, Wiki Government, was published in April.

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