By: Benjamin Gibert / Paul DiGiammarino / Roya Ghafele
Worldwide filings of patent applications and the ensuing invalidation requests have seen staggering growth over the last decade. The result is increasing patent backlog, deteriorating patent quality and an uncertain economic environment. This article briefly describes the crowdsourcing phenomenon and then details how it can aid patent review.
Patent application review is an integral part of the examination procedures undertaken by patent offices before a patent grant is given. Prior art search is a complex and time consuming part of this process. Crowdsourcing this critical stage is a valuable opportunity to render the traditional patent application review process more efficient by separating the stage of prior art search from the patent grant procedure.
This article briefly describes the crowdsourcing phenomenon and then details how it can aid patent review. The open source review pilot projects of the USPTO and JPO are presented in order to assess the potential of opening prior art search to a wider community of experts and practitioners. Public-private partnerships between patent offices and companies managing online review communities are proposed as an opportunity to leverage the benefits of open review while providing sufficient incentives and quality assurances to yield useful contributions.
Innovation is a major driver of economic growth in modern economies and it is no secret that investment in new technologies occurs when investors believe they can profit from them. Patent protection provides the incentive to invest in this market by permitting a temporary monopoly in return for public disclosure of an invention. This is not news. Yet, as the number of patent applications and patent invalidation requests continues to rise all over the world, patent office backlogs grow, patent quality deteriorates, companies operate under increasing uncertainty and the IP system begins to look stagnant.
Figure 1: Trend in total patent applications and patent grants
Despite fluctuating growth rates, patent applications have seen a steady increase globally (see figure 1) and patent backlog has grown in most major markets (see figure 2).
Figure 2: Number of pending applications by patent office: offices with > 50,000 pending applications
With this staggering increase in demand for patent application review, can we reasonably expect patent offices to keep up with the pace and conduct the exhaustive prior art search necessary to ensure patent quality? The EPO is concerned about critical public reactions to the growing backlog of patent offices around the world (EPO 2008, 6). Multiple offices have sought to streamline the patent review process in response. Increased harmonization and collaboration across offices has most often been the solution sought. However, increased information-sharing and shortened pendency times resulting from harmonization are not likely to improve the quality of the patents granted. So what could?
Tracing the evolution of business models in response to new technologies, Jeff Howe remarked in an article for Wired Magazine in 2006 that the age of the crowd is upon us (Howe 2006). Crowdsourcing presents a new opportunity for organisations to solve complex problems. Communications technologies provide powerful tools to harness the collective intelligence of millions of individuals in online communities. It is time for the patent system to turn to the crowd for help and draw on its deep and diverse knowledge of prior art. Efficiently managed online communities may offer significant advantages over traditional patent application review for both companies and the public. So what is crowdsourcing and how can it help patent application review?
By Roya Ghafele, Benjamin Gibert and Paul DiGiammarino
 This article is based on ‘Driving through Patent Application Review’ published in Journal of Intellectual Property Rights Vol 16 (4), p.303-308
About the authors:
Roya Ghafele is a Fellow of St. Cross College, University of Oxford and the Director of Oxfirst Limited, a boutique consulting firm specialized in the economics of innovation. In that capacity she is working with a range of high technology companies as well as the financial sector. Prior to founding Oxfirst Limited she was an Academic with the University Oxford and U.C. Berkeley and also gained five years of job experience with the United Nations, the OECD and McKinsey.
Benjamin Gibert currently works as a research consultant at Oxfirst Limited. He has worked on consulting projects with high technology companies and the European Patent Office among others. He received a Msc with distinction in Global Governance and Diplomacy from the University of Oxford.
Paul DiGiammarino is the President of Article One Partners a VC backed innovation platform that seeks to improve patent quality through the use of the Wisdom of Crowds. Prior to working for Article One, Paul was in the Senior Management Team of Anaqua and helped build the consulting firm American Management Systems.