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Working Together To Avoid The Patently Absurd

Patent reform may be in the air, but it'll be some time before the real fruits are reaped. In the meantime, we have to maintain our own guard against unfairly-granted patents, something the Open Invention Network's doing proactively with, for instance, the patents at the heart of the Microsoft / TomTom lawsuit.

OIN's mission in this regard is simple, but bold ideas often are simple ones. Take patents that are the center of any dispute like this one, post them for public review at the Peer to Patent or Post-Issue Peer to Patent sites, each designed for the sake of peer-review of patent grants, and use the input from the crowd to determine whether or not a given patent should have ever been granted. Patent examiners are only human, after all, and the research power of thousands of people put together can turn up far more than any one alone. A set of bullet points on the P2P site sums it all up nicely:

• Open up the closed patent review process to more information and enable better decision making.
• Improve the existing system by avoiding the issuance of overly broad patents.
• Demonstrate empirically the role that non-governmental experts can play in improving decision making.

This isn't just about bashing Microsoft, either, since it could be argued that MS has been just as much a victim of submarine patent abuse as anyone else. It's entirely possible that in some future dispute, a patent posted on the P2P site could be invalidated in their favor, too. In fact, one of the first patents posted for feedback by the OIN was the subject of a lawsuit directed at Microsoft and Google.

A third strategy, aside from reviewing patents that are either at the heart of a controversy or poised to become such, is defensive publication -- documenting something patentable in a public way so that it becomes prior art, and thus makes it unpatentable by third parties. If this sounds like it's part and parcel of the open source approach, it is: what's more open than having your source code available for public review?

But again, that's only the starting point for this kind of work. The whole idea of crowd-sourced patent reform isn't just going to stay confined to the area of software patents -- although, for now, that's where the controversy over patents tends to emerge in its most provocative forms, so that's where it helps most.. I could see, for instance, other review sites like this dedicated to analyzing patents for various industries -- or, when you got down to it, a kind of Wikipedia of public patent analysis that's subclassified by industry. That's not what the OIN has in mind -- they have their hands full with what they have right now! -- but it makes for an intriguing next step. Any takers?

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