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09.17.07

Tim O'Reilly

Tim O'Reilly

Patents and Scientific Peer Review

In comments on Andy Oram's recent Radar post about patents, reader Ian Mulvany of Nature made a point that I thought bears repeating as a new top-level entry. Ian wrote:

There is an interesting complement to the patent system in the domain of assigning credit to ideas, which is the academic peer-review system.

The inventor of the idea in the case of academia is the author. The equivalent to the patent office is the editorial board of the academic journal that the author submits to.

There is an idiosyncratic historical connection between the two systems too. Einstein famously worked as a patent clerk in Bern, Switzerland, before becoming a published academic.

At the time that Einstein was working the volume of patent applications was probably on a par with the submission rate of academic papers to peer reviewed journals, though I have no figures to back this up. In both cases an idea was submitted, examined by experts for originality and either accepted, granting the creator rights, or rejected, sending them back to the drawing board.

Fast forward to today and it seems that on the whole the two systems, work in almost the completely opposite manner from one another.

The peer review system continues to work much as it used to. An idea is submitted, reviewed, in most cases rejected initially, tweaked, re-submitted and possibly accepted. Scientists for the most part are looking for peer recognition though publication, and the career rewards that come with that through tenure and increased likelihood of earning academic grants. The micro-bio and nano fields are diverging from this template, but I'll get back to that at the end. I would classify this system as one in which the interrogation of the idea happens before the laurel is bestowed on the applicant. Contrary claims or claims of prior art appear as new publications in an ongoing conversation, but it is very rare for the reward (the citable paper) to be retracted. Working as a publishing editor for three years managing five academic journals I saw this happen with one paper, and even that that was considered unusual.

The patent system currently seems to work in completely the opposite way. The bar for having a patent approved seems quite low, but even after acceptance of a patent the rewards are not guaranteed until after the patent has been challenged in a court. The interrogation happens after the laurel has been bestowed, and only in cases where there is contention that there might actually be money to be made, which seems to be the real reward that drives people to patent their ideas rather than publish them.

Now why is this the case? I would offer this idea. Patent offices are essentially national bodies. This means that compared to the growth of academic journals there are relatively few of them. The academic system provides a distributed means of testing the goodness of the ideas, and so as the volume of academic submissions has risen the journal system has been able to scale with the growth and been able to cope.

While patent applications remained mainly technical it was possible for a centralized office to cope with the volume, but the advent of software patents has dramatically changed the balance. (I'm not saying that these ideas are essentially less valuable intrinsically, but rather that the explosion of people literate in creating though the medium of computer code has increased dramatically the volume of patents that are being filed). Under this increase in volume the national patent office system has simply broken. Where it now finds it's scalability is in the court system. There are lots of courts and lots of lawyers versed in patent law. I am not sure that any fix to the patent office, or to the information that is required to submit a patent is going to get rid of the problem of scalability as long as the office remains a centralized organization, but I might well be dead wrong about this.

In what could be a worrying parallel to the way that the patent system has gone the peer review system is beginning to experience strain. It is clear that it is key in the scientific process, however the vast numbers of qualified scientists coming out of China and India are beginning to greatly increase the submission rate to academic journals. The peer review system is beginning to creak under the weight. I hasten to add that it is working just fine at the moment, but consequences can be seen in the growing importance of various citation indices. A publication on its own is no longer sufficient for the advancement of most academic careers. It usually has to come with additional properties, such as being in a popular journal, being cited a certain number of times.

Another interesting development is that in some scientific areas patents are replacing peer-reviewed publications. I know of a few groups working on nanotechnology where they have results that could be published in a peer reviewed journal, but to do so might infringe on IP. In other cases the revenue from industry that the groups are attracting mean that at the moment they don't have the time to commit to writing up their results for peer-review.

Are the two systems getting closer again?

Could the patent system benefit from having different levels of quality in the way that the peer-review system has different quality journals? A gold-standard patent requiring full code disclosure and bug-free running program, with a bronze-standard patent being equivalent to the current level?

How can both systems utilize collective intelligence to alleviate the numerical and informational pressure that surrounds the act of review?

Though a word of caution, if you have answerers to the above questions you should probably patent them, shhh now.

There are a number of key points here, I think. First, the idea that disclosure and recognition are intertwined in both patents and peer review is an important one. Second is the idea that free market economics has made it possible to scale the peer review system in ways that centralized patent agencies have not been able to match. Third is the idea of quality of an issuing agency acting as a kind of curation mechanism. Finally, Ian raises the question of whether there are new kinds of curation via collective intelligence and Web 2.0.

That's a lot of brilliant food for thought! I have been arguing in the context of publishing that publishing is really about curation of content (finding the good stuff and organizing it for people), and that one of the big challenges for publishers in the era of Web 2.0 is to embrace rather than to fight these new forms of curation. Nature is at the forefront of this kind of thinking, as you can see here.

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Comments: 4

Seth Gordon   [09.17.07 06:01 AM]

A publication on its own is no longer sufficient for the advancement of most academic careers. It usually has to come with additional properties, such as being in a popular journal, being cited a certain number of times.

See also: this parody of a classic spam email.

Searchâ—Š Engines WEB   [09.17.07 06:49 AM]

http://dotank.nyls.edu/communitypatent/

It will be interesting to see if 'Peer to Patent' concept will take off or how it will evolve.

Alex Tolley   [09.17.07 07:45 AM]

"I would classify this [peer reviewed publication] system as one in which the interrogation of the idea happens before the laurel is bestowed on the applicant. Contrary claims or claims of prior art appear as new publications in an ongoing conversation, but it is very rare for the reward (the citable paper) to be retracted."

It used to be that way in patents. But in the 1980's the US (amongst others) patent office dropped that approach, preferring to set the bar low and letting the legal system sort out the validity of the patents. Patent examination became a low paid, low status job for graduates. The incentives were to pass as many as possible, rather than maintain quality.

"Could the patent system benefit from having different levels of quality in the way that the peer-review system has different quality journals?"

That is a very interesting idea. I could imagine that a patent be submitted (for higher cost) that when granted, there is no legal defense required to uphold it. The problem is how would that be upheld around the world - an international patents office would need to exist.

"How can both systems utilize collective intelligence to alleviate the numerical and informational pressure that surrounds the act of review?"

Isn't collective intelligence what the journals already employ - peers are a selected collective intelligence that appear for each new subject. The patent office could draw on the existing technical/legal pool, but the problem of course is that the lawyers are like brokers, they make more money by "churning" patents, rather than good patent decisions. When has a legal firm suggested not employing them to file a patent? Therefore the talent pool will have to come from the technical community that has a stake in ensuring that patents meet a high standard because it will benefit them directly.

Bob Warfield   [09.17.07 03:19 PM]

Peer review is difficult to contemplate without an effective referee as anyone who has dealt with so-called "expert" witnesses in a court of law will attest. The expert witness fits every definition of a peer you could imagine, and yet they smack of a lack of objectivity. The referee is essential to enforcing that objectivity.

In our system, the most expeditious path to refereed peer review is to let the system sort it out with a judge acting as referee. As Alex Tolley says, the legal system sorts out the validity of the peers.

The problem we have is that the current system is asymmetrical in terms of costs. It is cheap to be the plaintiff patent holder and very expensive to be the defendant standing accused. It can cost up to $2M in legals just to get a patent to trial, hence they're almost always settled out of court and patent trolls flourish to the point that some are publicly held companies.

My problem is that the asymmetry, particularly an asymmetry that favors the plaintiff, and a system that favors "passing on as many patents as possible", leaves me with the feeling that one is guilty until they can proove their innocence. Clearly that's at odds with what the founding fathers intended, but once again the commercial considerations have conspired to defeat their wishes.

Quite apart from helping innovation, patents will become an increasing drag on innovation as obvious works that should not be patentable exert a tax through the trolls on those who would innovate.

Sincerely,

BW


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