By Dennis D. McDonald

A September 26 New York Times article by Steve Lohr describes how IBM has decided to start publishing its patent filings on the Web for public review.

IBM is already one of the chief sponsors of the Peer to Patent project, which I described here.  One of the main goals of the Peer to Patent project, at least in the prototype system being tested next year by the US Patent and Trademark Office, is to open up the filing process to more public scrutiny in order to help identify "prior art." This opening of the process to more public participation will hopefully supplement and improve the workload of patent examiners who have been falling behind as patent applications have climbed. It will also help to "weed out" applications where examples of prior art are identified by volunteer experts from outside the Patent Office's staff.

IBM's own corporate decision as announced in the New York Times article is a major step away from a process that traditionally has been somewhat secretive. That process according to some commentators has actually spawned nefarious and ephemeral lawsuits where disruptive marketing strategy, not intellectual property rights, was really the litigation objective.

Patent filing secrecy has traditionally been based at least partially on the idea that publication of filing details too early in the examination process provides competitors "early warning" of corporate development and marketing activities. IBM's view, apparently, is that more public scrutiny will actually help prevent such copying by making claims public from the start.

It's a gutsy business move from a major user of the patent process.  The risk analyses carried out by IBM in deciding on this policy must have been fascinating. This process may be hinted at in IBM's public document about its recent wiki-based public discussions of intellectual property policy, which I hope to review soon. (Author's note: the follow up article is here.)

Perhaps one of the main drivers in IBM's decision to go public with the patent filling process is the acknowledgement that competitive advantage is generated not only by technological innovation but also by all the other ancillary systems and processes that must be orchestrated in bringing a new product or service to market. The "invention" itself is only part of what makes a product or service successful.

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