The Leahy-Smith America Invents Act (AIA) — for the first time in the history of U.S. patent law — allows third parties to submit relevant “proposed prior art” to patent examiners to help them determine whether an innovation in an application is patentable. Section 35 U.S.C. 122(e), was implemented by the USPTO on Sunday, Sept. 16, and applies to any pending application.
USPTO has effectively endorsed one private effort to “crowdsource” the identification of prior art, linking to Ask Patents by Stack Exchange, a social network in which volunteer subject-matter experts point out prior art for given applications and comment on suggestions from others.
Interestingly, in its press release, USPTO singled out software patents as an area with, perhaps, a softer underbelly when it comes to identifying prior art. “By introducing third party input into the examination process for the first time since the inception of our nation’s intellectual property system, we’re able to expand the scope of access to prior art in key areas like software patents.”