About Peer-to-Patent Australia

What is Peer-to-Patent?

Peer-to-Patent is an online forum created with the aim of improving the quality of issued patents. It is designed to achieve this aim by enabling self-selecting members of the public to supply the patent office with information relevant to the novelty and inventiveness of pending patent applications.

Peer-to-Patent provides a means by which an open community of peer reviewers can notify the patent office of any relevant prior art that may be of assistance to a patent examiner when assessing the eligibility of pending patent applications. This is a process which combines the democracy of open participation with the legitimacy and effectiveness of administrative decision making. The aim is to encourage experts within the community to pool their knowledge to bring to light prior art, particularly non-patent prior art, that might not otherwise be available to patent examiners. The advantage of doing this is that getting the best prior art before patent examiners leads to stronger, higher quality, and more robust patents.

Peer-to-Patent is the brainchild of Professor Beth Noveck, and is an initiative of the Center for Patent Innovations at New York Law School, which launched the Peer-to-Patent: Community Patent Review project in collaboration with the United States Patent and Trademark Office (USPTO) to open the patent examination process to public participation for the first time.

What is Peer-to-Patent Australia?

Peer-to-Patent Australia is a project that applies the peer-to-patent process in Australia. It is part of the international expansion of Peer-to-Patent into jurisdictions outside the United States and builds upon the successful Peer-to-Patent projects recently run out of the New York Law School in the United States.

Peer-to-Patent Australia will initially run as a 12 month pilot project designed to test whether an open community of reviewers can effectively locate prior art that might not otherwise be located by the patent office during a typical examination. Patent applications will be made available for peer review for a period of 6 months and there will follow a 6 month period of joint qualitative and quantitative assessment of the pilot project by IP Australia and QUT.

Peer-to-Patent Australia is operated by the Queensland University of Technology and is run in conjunction with and with the support of IP Australia. It is the result of the collaborative efforts of the Queensland University of Technology Faculty of Law and New York Law School. In this regard, the project team at Peer-to-Patent Australia is proud to acknowledge the support and involvement of the Peer-to-Patent project team at New York Law School, particularly its manager, Professor Mark H. Webbink, who made the Peer-to-Patent software platform available for use in Australia (the technology for which was developed by the New York Law School) and has worked collaboratively with us and enabled us to make Peer-to-Patent Australia a reality.

What is the objective of the Peer-to-Patent Australia project?

The objective of Peer-to-Patent Australia is to improve the patent examination process and the quality of issued patents by utilising the knowledge and skills of experts in the broader community. It is a way of linking the scientific and technical expertise of anyone with an Internet connection with the expertise of a patent examiner.

That community participation consists of members of the public reviewing patent applications and contributing relevant prior art references and comments within a web-based forum. The aim is to bring to light prior art, particularly non-patent prior art, that might otherwise not be identified by patent examiners. The better the prior art resources a patent examiner has at his or her disposal, the more likely a patent application will be assessed properly in terms of novelty and inventive step.

The role of Peer-to-Patent Australia in this regard is to act as both a facilitator of discussion and a collector of prior art submissions. Peer-to-Patent Australia collects relevant prior art references on behalf of the reviewing community and forwards that prior art to IP Australia. Section 27 of the Patents Act 1990 (Cth) allows for the Commissioner of Patents to receive submissions of prior art by third parties relevant to the novelty and inventiveness of a particular patent application.

How does the Peer-to-Patent process work?

Peer-to-Patent Australia uses an interactive web-based forum which allows self-selecting members of the public to review participating patent applications and submit relevant prior art references in order to assist patent examiners to assess the novelty and inventiveness of those patent applications.

The process works like this. IP Australia selects patent applications for public review and facilitates the search for prior art by the participating community of reviewers. At the end of the review period, the prior art identified by those reviewers is collected by Peer-to-Patent Australia and submitted to IP Australia for use by the patent examiner who is charged with the responsibility of determining the validity of the patent application in question. In doing this, Peer-to-Patent Australia in no way abrogates the responsibility of the patent examiner to assess the application as he or she would ordinarily do. The only difference Peer-to-Patent Australia makes to the examination process is that it provides the examiner with prior art information that he or she might not have otherwise located.

What is the benefit to the public?

Patents are a species of intellectual property rights that protect new and useful inventions. They are granted by the State to exclude others from making, using and selling a patented invention. Patents exist to promote invention, innovation and the financing of invention and innovation. In this sense, they represent a bargain between the inventor and the State. In exchange for, and to encourage the disclosure of the workings of an invention to the public, the State offers inventors a 20 year monopoly to exploit the invention. That is, in exchange for disclosing the invention, the inventor gets to use the invention (if all necessary regulatory requirements are met) to the exclusion of all others for a period of 20 years. Patent law operates on the assumption that the monopoly rights on offer are a sufficient reward to induce the development of new technologies at a faster rate than what would otherwise occur.

The public only benefits when patents are granted in respect of subject matter that is actually novel and inventive. A patent should only be granted for an invention that adds to the existing body of publicly-available technological information. Peer-to-Patent Australia operates for the benefit of the public by assisting patent examiners to properly assess the novelty and inventiveness of an invention for which a patent is sought to better ensure that only deserving applications are rewarded with the grant of a patent.

What is the benefit to patent applicants?

The benefit to participating applicants is that their applications will undergo a more rigorous examination against the strictures of novelty and inventiveness and are likely to be more robust as a consequence.

The more robust a patent, the more valuable it is and the less likely it is to be challenged, which is a benefit that represents significant cost savings over time to consumers, patent holders and the public at large. More robust patents are less likely to be litigated or disputed in licensing discussions. As a consequence, the marketplace for such inventions will be more efficient.

In addition, the identification and elimination of weak claims early in the examination process ultimately saves the applicant money by avoiding the expensive process of pursuing or enforcing non-meritorious patent claims. Finally, it is anticipated that open peer review will encourage applicants to file better constructed and clearer applications and lower the incentive for those who might seek to file low quality applications.

How is Peer-to-Patent Australia funded?

Peer-to-Patent Australia acknowledges the financial support of IP Australia, the Commonwealth of Australia and the Department of Innovation, Industry, Science and Research (DIISR) through the Open Access to Knowledge (OAK) Law Project and the Legal Framework for e-Research Project.

Project team

Professor Brian Fitzgerald
Project Leader, Peer-to-Patent Australia

Ben McEniery
Project Manager, Peer-to-Patent Australia

Jimmy Ti
Technical Consultant, Peer-to-Patent Australia

Contact details

Mailing address:
Peer-to-Patent Australia
Queensland University of Technology
Level 1, 126 Margaret St
BRISBANE QLD 4000

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