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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 37 / 39

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2006:1275

Inoperable Inventions

1311

section 4 forbids submitting patent applications during the period of employment and for one year thereafter.292 Similar obligations could be placed on experts who choose to participate in the peer-review system.

If a peer-review system were used only in cases involving suspected wholly inoperable inventions, the abovementioned dangers of misappropriation would be minimized. However, if one believes that an inoperable invention has no legitimate market value, reviewers would have no commercial interest in the invention itself. Furthermore, the same scientists who currently disparage the patent system for granting pseudoscientific patents may be happy to review these patents out of a sense of professional obligation, thus incurring very little cost for the patent system.

The USPTO is currently considering a peer-review system proposed by Professor Beth Noveck, founder of the Peer to Patent Project.293 This organization’s Community Patent System would consist of two stages. In the first stage, the community at large would have a time-limited opportunity to assist the patent examiner in locating the most relevant prior art references for a given patent.294 In the second stage, a panel of experts would convene to review the patent for

obviousness.295

IBM and, more recently, Microsoft have volunteered to

participate in a pilot program.296 Although the primary concern of the program appears to be the rejection of patents that are obvious or lacking novelty, the expert panels convened under stage two of the “”Community Patent System would likely increase the possibility of identifying and rejecting inoperable inventions as well.

C. Opening the Reexamination Procedure to Inoperability Objections

Due to the secrecy requirement of the application process, the public does not become aware of a patent application until eighteen

clients, id. R. 1.9(c)(1), and a rule of confidentiality for both present, id. R. 1.6(a), and former, id. R. 1.9(c)(2), clients that would directly apply to the above scenario.

292. 293.

35 U.S.C. § 4 (2000).

See

The

Peer

to

Patent

Project,

Community

Patent

Review,

http://dotank.nyls.edu/communitypatent (last visited Nov. 1, 2006); Beth Simone Noveck, “Peer to Patent”: Collective Intelligence and Intellectual Property Reform, Mar. 2006, http://dotank.nyls.edu/communitypatent/P2Patent_Apr_2006.pdf; Eli Kintisch, PTO Wants to Tap Experts to Help Patent Examiners, 312 SCI. 982, 982

  • (2006)

    .

    • 294.

      Noveck, supra note 294, at 23-31.

    • 295.

      Id. at 31-34.

    • 296.

      Press Release, The Peer to Patent Project, Microsoft Signs On as a Lead

Sponsor and Participant in the Community Patent Review Initiative (July 14, 2006), http://cairns.typepad.com/peertopatent/2006/07/microsoft_signs.html.

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