Monday, March 05, 2007

Notice & Comment Versions 1.2 and 2.0

Federal administrative agencies have long permitted the public to provide comments on proposed regulations after having received notice via the Federal Register. In recent years, the agencies have accepted comments via the internet, a development that we might call Notice & Comment Version 1.1. It's a small step but a useful one.

Today, the Washington Post reports that the Patent & Trademark Office will accept comments on patent applications (formerly walled off pre-approval for fear of revealing proprietary information). What makes the PTO program distinctive is that individual commenters will receive reliability rankings based on how useful the information they provide turns out to be over time. The story expressly compares the system to Wikipedia and customer ratings systems like those used by eBay.

Nonetheless, I would call the PTO project Version 1.2 rather than 2.0 because it does not cede any meaningful control from the agency personnel to the interested public. It views comments in much the same way as the Notice & Comment process has always viewed them --- as a means of better informing the agency's expert staff about potential problems with various courses of action. For the PTO those issues are largely going to be technical, but for other agencies they will include political issues as well. Indeed, even for the PTO, we can envision the comment process as yielding info re political issues, such as the patentability of human genes, etc.

What would Notice & Comment Version 2.0 look like? I have in mind some means of aggregating and distilling public knowledge in which the wisdom of crowds plays more than a merely advisory role for the agency. I don't think agencies could simply cede control to the public entirely, for fear of sabotage. The Google page-rank system is vulnerable to "google-bombing" (Google "Santorum" if you don't know what I'm talking about) and Wikipedia can be victimized by vandalism (Check out the Stephen Colbert-inspired vandalism on the entry for "Elephant" by viewing the history tab for late January of this year). For agency rulemaking, where billions of dollars are at stake, we would have to worry about corporations and their agents trying to game the comment system. But of course, "agency capture" by regulated entities is already a problem, and the increased transparency and decentralization that going to a genuinely user-based system of rulemaking would yield might be a way to combat such capture. I myself haven't figured out just how to do this, but it strikes me as a pressing question for administrative law and policy, one not unconnected to what Chuck Sabel, Bill Simon, I, and others call "democratic experimentalism."


David Crowley said...

I wonder how the patent office currently ranks its commenters. Presumably, all agencies have some way of distinguishing those who submit opinions/information, even if it is only informal. I'd be surprised to learn that my personal submission would receive as hard a look as a prominent lobbying firm or a respected scholar, even if what I happen to write is, by fortuity, extremely informative and useful. A public reputational system seems to foster transparency by identifying which firms/people actually get heard by the patent office, but it also likely will have the effect of demonstrating just how undemocratic the whole process actually is. I wonder if the increased transparency is desirable if it actually dissuades participation in the comment system, and leads instead only to better business for K Street (or whomever one goes to for comments on that sort of thing).

It would also be interesting to see if reputational rankings shift with different administrations. The patent office is probably more insulated from politics than, say, the EPA or the Dep't of Labor, but I imagine that some administrations could be more or less friendly to Microsoft, Hollywood generally, etc. If so, I wonder if we would see a fluctuation in the reputational rankings of Bill Gates/Brad Smith or the MPA, or if the rating system would actually become a way to decrease transparency by giving high ratings to disfavored commentators in a way to deceive them into thinking that their views were given consideration. If so, the reputational ranking system might do more harm than good, because it would falsely lead interested parties to ally themselves with seemingly favored, but actually disfavored, commenters, and it would decrease accountability by making parties think they had a voice when they actually did not (although I doubt they'd be fooled).

I guess the grand point in all of this is that the public reputational rankings sounds like a good idea in an apolitical agency. Whether the patent office is that agency is a question beyond my expertise.

Luis Villa said...

David, the PTO currently doesn't have commenters to rank- just you, the patent officer, and your lawyers. So despite this being ~1.2, it is a 1.2 for an agency that never did 1.0.

Relatedly, the PTO believes itself to be extremely apolitical. It is a point of pride there that a patent application from IBM gets the same treatment as an application from Joe Shmoe. As a result, they are very worried internally that this will become a political tool, and that (say) MS patent applications will get a different treatment from everyone else's, since those will be higher profile and attract more attention.

For what it is worth, you can see early screen design mockups for the project here, and some occasional open design discussion takes place here , and broader announcements here.

Craig J. Albert said...

To me, this is a tremendous and positive innovation. The problem with the patent office's current practice is that there's no effective mechanism for the general public or users in any specialized field to scrutinize an application and explain to the examiner why the invention either isn't novel or is obvious. There's no need to re-hash here the horror stories of allowed business method patents on simple and not-so-simple business processes that have been used for years in a variety of trades, only to be later protected by consultants who see an opportunity in writing down what everybody else already knows and paying the requisite filing and legal fees.

Allowing for free commenting performs many functions. Here's an incomplete list. First, it will plainly reduce the number of allowed patents by showing the examiners what the prior art is and where to look for it. Instead of one person -- the examiner -- looking on his own, guided by the applicant's assessment of what the prior art is, there will now be an entire community of prior art researchers. Those researchers will include many who believe fervently in the idea of the creative commons, and will therefore look hard for prior art, without the expectation of compensation. Second, in the event that the patent is issued, the record developed before the USPTO will provide valuable information to the marketplace both as to whether the patent really is as strong as it appears and, if not, where potential infringers might look in order to find the prior art and where to look for experts who will testify as to obviousness. Those effects will lower the costs of litigation substantially. Third, it will spur innovation. By promoting a discussion of cross-disciplinary solutions within the context of an a pending application for a patent in a particular field, physicists (for example) will educate chemists (for example) about what they know and how it applies to the other field.

Contrast the new regime with the existing one. Under the existing system, when Big Corp is awarded a patent on a process that many TinyCos have been using forever, and Big Corp sues one TinyCo to make an example, TinyCo has a huge problem: if it succesfully defends on the basis that the patent is invalid, then the money it spends conveys an external benefit on all of the other TinyCos, for which the fighting TinyCo is never compensated. If, on the other hand, it settles for a license and a license fee, then it can continue to operate, but the patent is strengthened in the collective mind of the community. In litigation with this dynamic, there's no incentive on the part of the alleged infringer to try to have the patent invalidated; instead, the only way this litigation makes sense for TinyCo is if TinyCo has a senior patent potentially infringed by BigCorp's junior patent.

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