ENHANCING THE QUALITY OF SOFTWARE PATENTS BY OPEN REVIEW

Software is an abstract technology that facilitates abstract claiming. In order for the patent system to operate well, it is crucial that the patent examiners secure the quality of software patents. The examiners, however, have difficulties in obtaining “good quality” prior art information regarding a particular patent application. Due to the institutional factors, the examiners are not willing to seek outside resources. As such, the patent review practice cannot work well due to the information deficit problem that consequently leads to the poor patent quality problem. In particular, as this article noted, the poor quality of software patents has posed serious threats on the open source community. With this concern in mind, this paper discusses the ways to mitigate the risk of patent infringement under the open source framework, such as the GNU GPL version 3.0. This article traces the open source community’s patent problem back to the patent review process’s poor quality problem. This article, therefore, explores different ways to improve the quality of software patents, suggesting the U.S. patent examination system to include open review into its existing review framework. On the one hand, the traditional peer review will provide valuable insights for the examiners. On the other hand, however, a new review model that invites the public to contribute their knowledge and to scrutinize the review process is of great help to enhance the quality of an issued patent, especially a software patent.