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Abstract
One of the major planks of some visions for E-Gov is that there is a willing participatory group who are more than happy to be involved in new forms of democracy and will be active and useful suppliers of input to e-consultation or e-participation processes. This group is different from that which goes online to the government website and signs a petition asking the prime minister to resign. It is becoming clear, though, that the commitment to e-participation may well be there in theory, but difficult to access in practice. Further, the participation that is most welcome can frequently require training and expertise that is not widely available or there may be differences in opinion as to the point of participation. In this paper I will look to the attempts to encourage participation in the patent system. The UK has initiated a trial system utilising New York Law School's Peer-To-Patent project, but has also attempted to involve participants in previous consultation exercises. I will use these as demonstrations of the sorts of problems that e-participation has met, and consider whether this new form of E-Gov is perhaps being oversold. The interesting question is whether participation is a growing tool that can ensure better public services from the State. My conclusion is that consultation and participatory projects can demonstrate involvement and are certainly educative, but e-participatory projects are most likely incapable of achieving the goals set by their more optimistic advocates. The paper emphasises the patents field, but the lessons from it can – I suggest – be viewed as indicators having wider governance relevance. The primary point being made is that the technocratic view is always over-optimistic.
Notes
This was rejected as a suitable topic due to being ‘party political’.
For example, see Lathrop, D., and Ruma, L. (eds). 2010. Open government: collaboration, transparency, and participation in practice. Sebastopol, CA: O'Reilly Media.
We should remember that there are many economists who are opposed in principle to any form of monopoly – and patents are a monopoly on ideas.
Noveck, B.S. 2009. Wiki government: how technology can make government better, democracy stronger, and citizens more powerful, xiii. Washington: Brookings Institution Press.
Noveck, B.S. Undated. Slides, ‘peer to patent’: community patent review, at cairns.typepad.com/peertopatent/files/uspto_feb_16_06.ppt (accessed 16 March 2011).
‘Last year I traveled to Tripoli (four times!) to design and test software for citizen participation in legislative deliberation. These tools were designed, not for individual participation, but for communities and groups, including citizen juries based on self-selection and expertise, to refine ideas together, using the screen (in face-to-face meetings and online) to reflect their own work back to themselves. While I have not written yet about Libya, specifically, my recent article on Wiki-Government in the Democracy Journal was informed by this work.’ http://llk.media.mit.edu/courses/readings/noveck-ideas.pdf (accessed 16 March 2011).
Peer to Patent First Anniversary Report. Available at http://dotank.nyls.edu/communitypatent/P2Panniversaryreport.pdf (accessed 16 March 2011).
‘In addition, the Government will launch a pilot UK “peer to patent” system that harnesses crowdsourcing technologies to help maintain patent quality. Under the “peer to patent” system, versions of which are being trialled around the world, technology experts can comment on patent applications over the Internet, helping patent offices identify innovations which are genuinely inventive.’ Blueprint for technology, London: Department for Business, Innovation and Skills, 2010.
Noveck, B.S. 2006. ‘Peer to patent’: collective intelligence, open review and patent reform. Harvard Journal of Law & Technology 20, no. 1.
Respondents can request privacy, but a Freedom of Information request would produce information on who that respondent was.
The Hargreaves Independent review of IP and growth received a considerable number more. See http://www.ipo.gov.uk/ipreview/ipreview-c4e/ipreview-c4e-submissions/ipreview-c4e-submissions-full.htm for a full listing.
Secretariat functions are provided to the Hargreaves team by the IPO.
Peer to Patent Australia, First Anniversary Report, December 2010
S.21 Observations by third party on patentability.
(1) Where an application for a patent has been published but a patent has not been granted to the applicant, any other person may make observations in writing to the comptroller on the question whether the invention is a patentable invention, stating reasons for the observations, and the comptroller shall consider the observations in accordance with rules. | |||||
(2) It is hereby declared that a person does not become a party to any proceedings under this Act before the comptroller by reason only that he makes observations under this section.’ | |||||
The 2005 Patent Office Directions, ‘Submitting observations concerning the patentability of an invention’, provides information on what is an appropriate submission for observations relating to computing inventions. See www.ipo.gov.uk/pro-types/pro-patent/p-law/p-legislation/p-direction/p-direction-section21.htm | |||||
The consultation document on e-filing (2011) notes: ‘Online file inspection and copies will help ensure the proper performance of administrative proceedings for patents. This is because patent applicants, third parties and other offices will be able to check patent files more easily and quickly. This will help them monitor the progress of a patent application and understand what has happened or is happening during the grant process (and beyond). It will also enable people to more easily review patent files to see if it would be appropriate to make an observation under section 21 of the Patents Act 1977 on the patentability of the invention.’
Art. 115, EPC. Chap IV, Guidelines for Examination in the EPO: ‘Following publication of the European patent application under Art. 93, any person may present observations concerning the patentability of the invention. … Although the third party is sent acknowledgment of the receipt of his observations, the EPO does not inform him of any further action it takes in response to them. The observations are communicated to the applicant or proprietor without delay and he may comment on them. If they call into question the patentability of the invention in whole or in part, they must be taken into account in any proceedings pending before a department of the EPO until such proceedings have been terminated, i.e. they must be admitted to the proceedings. If the observations relate to alleged prior art available other than from a document, e.g. from use, this should be taken into account only if the alleged facts either are not disputed by the applicant or proprietor or are established beyond reasonable doubt. Observations by third parties received after the conclusion of proceedings will not be taken into account and will simply be added to the file.’
See Leith, P. 1998. Harmonisation of Intellectual Property in Europe: A Case Study in Patent Procedure, Vol. 3, Perspectives on Intellectual Property, 143. London: Sweet & Maxwell. Available online at http://www.bailii.org/uk/other/books/1998/b1.html
The first UK ‘twitter libel’ shows the problem: http://www.bbc.co.uk/news/uk-wales-south-east-wales-12704955
These are listed as case studies in the Australian project report and also in the US reports.
21 March 2011.
And the salary at the EPO is certainly attractive – even without the very low tax paid by employees. The US is also recruiting: ‘Why Work for USPTO? Imagination. Creativity. Possibility. Opportunity. No career is fulfilling without them. USPTO is the premier agency of over 8,000 talented and enthusiastic employees serving the economic interests of the U.S. by contributing to a strong global economy, encouraging investment in innovation, and cultivating an entrepreneurial spirit for the 21st century. Our employees take their jobs very seriously, because they know the public is counting on them. As an employee of the only Federal agency responsible for granting patents and registering trademarks in the U.S. Government, you too can have the satisfaction of protecting the intellectual property rights of inventors.’ http://www.usptocareers.gov/Pages/WhyWork
http://saxonica.blogharbor.com/blog/_archives/2010/11/14/4679872.html In fact, it should be possible to say whether it is original, and 20 years is the term of a patent. This indicates the mismatch between public and expert understandings of the patent system.
United States Patent 6329919
Beresford, K. 2000. Patenting software under the European Patent Convention. Sweet & Maxwell.
Noveck, B.S. 2006. ‘Peer to patent’: collective intelligence, open review and patent reform. Harvard Journal of Law & Technology 20, no. 1.
‘The UK's chief drugs adviser has been sacked by Home Secretary Alan Johnson, after criticising government policies. Professor David Nutt, head of the Advisory Council on the Misuse of Drugs, criticised the decision to reclassify cannabis to Class B from C. He accused ministers of devaluing and distorting evidence and said drugs classification was being politicised. The home secretary said he had “lost confidence” in his advice and asked him to step down.’ http://news.bbc.co.uk/1/hi/uk/8334774.stm
Coglianese, C. 2009. The transparency president? The Obama Administration and open government. Governance 22: 529–544.
State Street Bank and Trust Company v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998).
In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 (Fed. Cir. 2008).
See, for example, Leith, P. 2007. Software and Patents in Europe. Cambridge University Press.
Seventeenth Session, Rio de Janeiro, February 9 to 11, 2010, Third Party Observations, Document prepared by the International Bureau.
See Leith, P. 1998. Harmonisation of Intellectual Property in Europe: A Case Study in Patent Procedure, Vol. 3, Perspectives on Intellectual Property, 143. London: Sweet & Maxwell. Available online at http://www.bailii.org/uk/other/books/1998/b1.html
Morison, J. 2010. Gov 2.0: towards a user generated state? The Modern Law Review 73, no. 4: 551–577.
Henman, P. (2010) Governing Electronically: E-government and the Reconfiguration of Public Administration, Policy and Power. Basingstoke: Palgrave Macmillan.
See, for example, Leith, P. 2010. The rise and fall of the legal expert system. European Journal of Law and Technology 1, no. 1. Leith, P. (with Geary R.) 1990. Law in a changing technological society. In Law, Society and Change, ed. S. Livingstone and J. Morison. Gower: Aldershot. Leith, P. and Geary, R. 2001. From operational strategy to serving the customer: technology and ethics in welfare law. International Review of Law, Computers & Technology 15, no. 2.
Armstrong, C. 2010. Emergent democracy. In Open Government: Collaboration, Transparency, and Participation in Practice, eds D. Lathrop and L. Ruma. Sebastopol, CA: O'Reilly Media.
Schaper, N. 2010. Enterpreneurial insurgency: republicans connect with the American people. In Open Government: Collaboration, Transparency, and Participation in Practice, eds D. Lathrop and L. Ruma. Sebastopol, CA: O'Reilly Media.