Public participation in patent examination

The involvement of the public in patent examination is used in some forms to help identifying relevant prior art and, more generally, to help assessing whether patent applications and inventions meet the requirements of patent law, such as novelty, inventive step or non-obviousness, and sufficiency of disclosure.

The rationale for public participation in patent-application reviews is that knowledgeable persons in fields that are relevant to a particular patent application will provide useful information to patent examiners if the proper forum is provided. One model for such a forum is a model where the public may submit the prior art and commentary that are relevant to a given patent application, and patent examiners can consult that forum. The intended effect is that patent examination will be more efficient and thorough so that the patents that are issued will be of a higher quality than is currently possible.

In the 17th and 18th centuries, patent examination in France for novelty and utility was performed by the private French Academy under commission from the French government. The Academy sought the input of outside experts in the specific fields of the inventions. Galileo, for example, was consulted when a patent was applied for regarding a new method of determining longitude according to the position of the moon. Galileo’s conclusion is that the method would work in principle, but the measuring techniques are not accurate enough to provide meaningful results; therefore, the patent was denied.

In the United States, the third parties may not provide commentary or opinions directly to a patent examiner during the prosecution of a patent unless the patent applicant gives the examiner written permission to do so. Rule 99, which previously allowed a member of the public to submit prior art to an examiner within two months of an application publication, has been repealed by the AIA. Rules 290 (37 CFR 1.290) and 35 USC 122(e) control the submission of prior-art references by third parties after the publication of an application and before the issuance of the patent. The cited prior-art references must be dated at least six months from the date of the publication, the first rejection of any claim, or the notice of allowance.

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Wikipedia