A key requirement for an invention to be patented (read: receive temporary monopoly protection), it must be, among other things, “novel.” To determine if an invention is, in fact, novel, patent examiners must determine if “prior art” (i.e. a previous iteration or description) of the invention exists. If the knowledge is already out there, there’s no point to issue a patent for an already discovered idea.
But patent examiners are overworked, facing a substantial backlog and spending anywhere between 19 and 40 hours per patent examined (sometimes less for more senior officials), and determining the existence of prior art is difficult. Thankfully, USPTO is getting some help from the private sector to better access prior art.
When there’s no good system for researching prior art that can be scattered across user manuals, conference presentations, websites, pay-walled peer-reviewed journals or temporarily public marketing materials, patents get issued that end up being challenged in court. Improperly issued patents inject uncertainty into the patent system, discourage other innovators and result in higher costs to consumers.
To improve the ability to search prior art, the U.S. Patent and Trademark Office, together with MIT Media Lab, Cisco and Google have developed the Prior Art Archive, a free and open archiving platform where the public can upload prior art that can be searched by entrepreneurs, patent examiners and the public.
The contributions of private firms to the project is impressive. Cisco scanned 165,000 paper documents, and AT&T also contributed (Amazon, Dell, Facebook, Intel, Salesforce, and Microsoft have also pledged to add to the archive). Google assigned classification codes to make the database more searchable.
Though Silicon Valley has a complicated relationship with intellectual monopoly, in an industry based on innovation, preventing the patenting of already existing works is crucial. Patents restrict the development of follow-on innovation, making it harder for tech companies to make incremental improvements to protected products.
For more ways private companies are improving access to intellectual property, check out this Rent Check post on patent pools.