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While considering a patent application, a patent examiner at the United States Patent and Trademark Office (USPTO) is expected to search prior art to determine whether an application is novel and non-obvious. Unfortunately, prior art can come in a variety of forms. For example, prior art can be patents, scientific publications or presentations, trade journals, Ph.D. theses, or even evidence of use of the technology (just to name a few sources). Prior art can come from anywhere in the world and can be in any language. With examiners spending only about 22.5 hours on each patent, a lot of prior art has been missed.
On September 16, a new provision of the America Invents Act (AIA), which will have a major impact on patent examination, was implemented. Title 35 U.S.C. 122(e) allows third parties to submit prior art to the USPTO during the application process. ”The submission by third parties of prior art – the library of published patents, applications, or other publications in a specific technology area – allows the USPTO to tap directly into the U.S. innovation community,” according to a USPTO press release. ”Submissions provide a fuller, more exhaustive scope of materials for examiners to review in determining the novelty of a given application. This new mechanism will help ensure that truly novel, useful, and non-obvious innovations obtain the intellectual property protection they deserve.”
But simply all0wing submissions is not enough for the USPTO; they’re looking to encourage widespread public involvement in prior art searching. As a result, they have partnered with the people at Google and Stack Exchange to crowdsource prior art searching. According to the USPTO, at the new website, Ask Patents, “subject-matter experts volunteer to suggest prior art for given applications, as well as offer their input on the proposed value of those suggestions from others.” Meanwhile, at Google Patent Search, links will be provided from relevant patent applications to discussion pages on Ask Patents. David Kappos, the director of the USPTO, said “[w]e encourage our nation’s innovators to follow Stack Exchange’s example and assist us as we improve the examination process and resulting patent quality that will drive our economy and create jobs and exports.”
Do you think crowdsearching is the answer? What effect do you think this will have on the patent application process?
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