(First and foremost: I have to give my buddy Ryan props for laying out some of the fundamental issues facing music and technology this morning, as part of a talk he did at our alma mater, Northeastern. This one is definitely worth the click-through.)
This is sloppy, but I hope engaging:
I had the good fortune to attend a lunch lecture featuring Professor Beth Noveck from the New York Law School. Professor Noveck is a very active member of the IP/tech movement, and founder of Peer to Patent – an approach to a critical part of patent law that uses social networking and (for lack of a better term, and I do find it displeasing) “crowdsourcing” to help get over a fundamental search element in the patent process.
Here’s a quick framing of the problem – quick for brevity’s sake and quick in that it effectively exhausts my knowledge in the patent field. A patent is the exclusive right to use an original invention, device, or process in exchange for the sharing of that information. It’s a fundamental quid pro quo governments strike with inventors: share with us your bright new idea, and for a limited period of time (and in patent law it actually is effectively limited: 20 years) you have the right to exclude others from using your work. In order to protect a patent you have prove a few critical elements: that your patent is of a patentable subject matter, it is non-obvious, it has utility (which is to say you can actual do something with it), and it is novel – there is nothing like it in the industry today. There are other requirements of course, but again: brevity and lack of knowledge.
Fundamental to the patent process is the search and discovery of what patent professionals call “prior art,” a legal term which describes all information available to the public (that is, not a trade secret) surrounding a new patent, which weighs on the patent’s originality. If prior art is found to have expressed whatever this invention is before the inventor does, the work is usually not patentable. It makes sense to have this provision – after all, we should only interest ourselves in patenting new things. So, for example, if I make a claim that I’ve discovered a wild new technology that allows me to make instant photographs with a camera using a fancy developing chemical, there is a process in which the US Government looks at all of the other “instant photograph” technology known to the general public before granting my patent. Here, one might look to the prior art of Polaroid, see that I’m just copying them, and thus deny my patent claim.
Now, by law, the United States Patent and Trademark Office is the group that does this search (in addition to some disclosures made by the applicant), and they have a vast team of people that do this form of research. But the pressures of time require no more than a few hours spent extensively researching any given patent. Clearly, if we could spend more time, more prior art can be discovered, and thus eliminate patents that will later prove dubious, unwarranted, and subject to much litigation (which is expensive from a financial and from a judicial economy perspective), as well as reinforce the knowledge of the particular field so we can say “yes, in fact, this is a new invention” with authority.
Professor Noveck has built a website which helps to augment the research done by the USPTO. In walk Peer to Patent, a way to get professionals to volunteer* time to research patents that are willingly submitted to this crowd-sourced vetting process. An inventor or company volunteers to publicly expose a patent application for the purpose of interested citizens who might have some expertise in this field to submit any examples of prior art which may sway the USPTO in making their decision. Take a look at some of the testimonial videos if you’re confused as to what I mean by that.
[* - "volunteer" may be generous. Many companies, including Microsoft, IBM, and HP, allow their staff to spend time on Peer to Patent on the clock, and Noveck admits a plurality of contributors come from these companies.]
As many have testified before, the power of letting a collective mass tackle these sorts of directed questions should not be understated. As Noveck points out, the experts in many of these fields are coming form the fringes of a business center. I certainly lack the expertise (so far) to be a good USPTO investigator, but I probably know more than the average investigator about the digital music recording market, and could quickly tell if some new invention has been done before. This goes back to the long-tail discussions (and “true fan” discussions and vast amount of what I mentioned in my writings on the Berkman@10 conference. See here and here for starters.