I’m Kit Walsh, an attorney at the Cyberlaw Clinic at Harvard’s Berkman Center for Internet and Society. We have been working with the Electronic Frontier Foundation to help prevent overly broad patents from issuing on 3D printing technologies. We use a new procedure that allows members of the public to submit examples of relevant prior publications so that patent examiners can better determine whether applicants are asking for an intellectual monopoly that is broader than they deserve under law.
We thought it was relatively uncontroversial that the patent system functions best when examiners are aware of what innovators have already published and do not grant overly broad patents out of ignorance. We were therefore surprised to read Mr. Hornick and Ms. Bhushan’s critique of our project in 3D Printing Industry earlier this month. This is my response to that article.
Hornick and Bhushan correctly lay out some of the relevant facts: “3DP has been around for over 30 years and has been widely adopted and developed by thousands of Makers and the industrial sector” and there is “tons of prior art.” We were excited to read their conclusion that the submission of prior art “could reduce the number and breadth of patents that issue in the 3DP space” and indeed “any technology” using the crowdsourcing model you see on AskPatents. We certainly hope so!
If giving examiners relevant prior art would reduce the “number and breadth” of patents, that means they are currently issuing overly broad, invalid patents because they do not know about critical information that’s been published. Examiners have limited time and tools needed to find prior art, and we have noted elsewhere that 21st-century innovation often happens on email lists, code repositories, web forums, and other non-traditional publication platforms that are harder for examiners to search.
One can debate whether existing patent laws stifle and punish innovation more than they help, but it should be uncontroversial that it is a bad thing for the patent office to grant an overly-broad patent due to ignorance of critical prior art. Congress and the patent office recognized this when they created and implemented the preissuance submission procedure, and the patent office made sure that the process remains limited by forbidding third parties from making arguments in their submissions. If you read our submissions, you’ll see they’re very dry, bare-bones explanations of which parts of a publication we wish to call to the examiner’s attention. In fact, Dennis Crouch has argued that the patent office went a little too far in restricting the content of preissuance submissions. In any event, the patent office certainly does not allow more than is called for by statute.
The preissuance submission process invites the public to help patent examiners, and we are eager, in turn, to help the public do so. As our project continues, we will share the lessons we learn and further examples of successful submissions we have made. You don’t need to be a lawyer to use the procedure and there is no fee to submit three or fewer references; interested technical experts can help improve patent quality just by investing the time to briefly point out the relevant parts of a publication and to upload their materials to the patent office.
Compare this with the massive costs and chilling effects associated with flimsy, overly-broad patents, and the advantages are obvious to almost everyone.