IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
In re: Request for Comments and Notice of Roundtable on USPTO Use of Crowdsourcing to Identify Relevant Prior Art
Docket No. PTO-P-2014-0013
COMMENTS OF PUBLIC KNOWLEDGE,
THE APPLICATION DEVELOPERS ALLIANCE,
AND ENGINE ADVOCACY
Public Knowledge, the Application Developers Alliance, and Engine Advocacy respectfully submit the following comments in response to the above-identified Request for Comments dated November 12, 2014. Public Knowledge is a nonprofit public interest organization whose primary mission is to promote technological innovation, protect the rights of all users of technology, and ensure that emerging issues of technology law, including patent law, serve the public interest. The Application Developers Alliance is an industry association comprising more than 35,000 individual developers and more than 150 companies. The Alliance is dedicated to meeting the needs of app developers as creators, innovators, and entrepreneurs, by promoting a robust ecosystem for continued innovation and economic growth. Engine is a non-profit organization that supports the growth of technology entrepreneurship through economic research, policy analysis, and advocacy on local and national issues. Engine has built a coalition of more than 500 high-growth businesses and associations, pioneers, innovators, investors, and technologists from all over the country, committed to engaging on the policy issues that affect the way they run their businesses.
Briefly, as commenters have stated in previous comments, crowdsourcing is an important tool for the USPTO in achieving its primary, central mission of issuing high quality patents. As Deputy Under Secretary Michelle Lee has said, “Issuing high-quality patents can play a significant role in curtailing abusive patent litigation over the long run.” Poor quality patents drive abusive patent litigation, taxing innovation and harming consumers, vulnerable startups, and small businesses. Thus, crowdsourcing is intimately tied to curbing abusive patent litigation, a problem whose magnitude even the USPTO recognizes.
Finding the best prior art is a prerequisite to patent quality, and crowdsourcing promises such high quality art. These comments suggest how crowdsourcing can be implemented effectively to maintain traditional expectations of patent prosecution while delivering a valuable resource to examiners. Specifically, commenters recommend:
- Examiners should engage in discussions with members of the public to implement crowdsourcing of prior art searches, utilizing the services where technologists currently deposit their best prior art, such as discussion forums and source code repositories. (See sections I.A and I.C.)
- As part of this engagement, examiners must serve as liaisons between the legal claim language and the technical expertise of participants, by translating elements of claims into general queries about the state of the prior art. (See sections I.B, I.C, II, and III.)
- Crowdsourcing activities should be comprehensively documented and indexed, as such documentation will facilitate both future claim construction and prior art searches in related applications. (See section IV.)
- The USPTO should condition an application’s acceptance into prioritized examination programs, such as Track One and accelerated examination, on entering the application into a crowdsourcing program. (See section V.)
These and related recommendations are discussed in detail below, with sections corresponding to the five issues identified by the Request for Comments.