Changes to US Patent Law - New Rules for Prior Art

There's a nice summary of the recent changes in U.S. patent law in the Jan. issue of Physics Today, and their relevance to academic scientists and engineers. The American Invents Act moves the U.S. from a first-to-invent system to a (modified) first-to-file system. Under the pure first-to-file system used by most countries, publication of an idea or invention prior to filing a patent application will prevent an inventor from obtaining a patent. The AIA retains a one-year grace period for publications authored by the inventor (the inventor's own work) or derived from the inventor's work. The article has a nice flowchart that explains how the one-year grace period works.

Wikipedia References in US Patents Increase in 2011

Wikipedia continues to be a favorite source of prior art references for inventors filing patent applications with the U.S. Patent and Trademark Office. The number of issued U.S. patents that cite Wikipedia articles increased by 26.3 percent in 2011, reaching an all-time high of 2,425. This is roughly one percent of all patents issued in 2011, a small but growing fraction. 

The top ten assignees shown in the table below hold approximately 17.65 percent of the 2011 patents that cite Wikipedia, which is off 5 percent from 2010. Once again, ICT firms dominated the top ten, which suggests that computer and telecommunications patents are more likely to cite Wikipedia than patents related to other technologies. The top three assignees (IBM, Microsoft and Google) account for nearly 10 percent of the total. Google jumped from 7th to 3rd place. Apple, which was in the top three last year, dropped to 5th place in 2011. Approximately 5 percent of the patents citing Wikipedia were unassigned, which is unchanged from 2010.

The second table below shows the top ten primary U.S. patent classes assigned to patents that cite Wikipedia. Unsurprisingly, the majority of the classes relate to information and communication technologies (ICT). However, four classes in the top ten, 514, 424, 435 and 463, cover technologies (pharmaceuticals and games) not directly related to ICT. In most cases, the percentage of patents in each class that cite Wikipedia exceeds the percentage of patents in that class. For example, Class 707 accounts for 7.67 percent of the patents that cite Wikipedia articles but only 2.16 percent of all patents issued in 2011.

Wikipedia References Increase 81 Percent in 2010

The number of US patents that cite Wikipedia increased again in 2010. Approximately 1,461 patents issued last year contain one or more references to Wikipedia articles, 81 percent more than in 2009. Although this is a tiny fraction of the total number of patents issued (roughly half a percent), it is still an impressive increase. In fact, because of variations in how Wikipedia articles are cited in patents (for example, in the specification rather than the list of references) the actual number may be higher. Wikipedia was first cited in a US patent in 2003. In 2006, the USPTO banned patent examiners from citing Wikipedia articles as prior art.

The top ten assignees shown in Table 1 hold nearly 23 percent of patents that cite Wikipedia. Technology firms dominate the list, which suggests that computer-related patents are more likely to cite Wikipedia than patents related to other technologies. Indeed, the top three assignees, Microsoft, IBM and Apple, account for almost 12 percent of the total. Three of the top ten, Intel, Infineon and Micron, are manufacturers of semiconductors and other computer hardware. Two of the top ten assignees, Boeing and JPMorgan, are not directly involved computer-related technologies. Only 5 percent of patents that cite Wikipedia are unassigned.

Table 2 shows the top ten primary patent classes assigned to patents that cite Wikipedia. The majority of the classes relate to information and communication technologies (ICT). Only two classes in the top ten, 514 and 424, cover technologies (drugs and pharmaceuticals) not related to ICT. As the data shows, the percentage of patents in each class that cite Wikipedia exceeds the percentage of all patents issued in 2010. For example, Class 707 accounts for 7.21% of patents that cite Wikipedia articles but only 2.18% of all patents issued in 2010. This is true for all classes with the exception of Class 370.
 

Wikipedia Not an Authoritative Source, Judges Tell Govt. Officials

Several Canadian judges have criticized immigration officials for citing Wikipedia articles in decisions to deport or deny entrance to foreigners. (Judges rap Wiki-evidence... Globe and Mail, Apr. 21) This is the most recent case of government agents using the online collaborative encyclopedia as an authoritative source.

In 2006 the USPTO ordered patent examiners not to use Wikipedia as a source of prior art information, but the number of patents that cite Wikipedia has continued to increase. (Many references are provided by applicants.) In the first four months of 2010, 348 issued patents contained references to wikipedia articles, a 27 percent increase over the same period last year.

Wikipedia References in Issued Patents

Back in September 2006 the USPTO banned patent examiners from using Wikipedia as a source of prior art information, citing its unreliability and lack of authority. Well, this apparently hasn't stopped examiners or inventors from citing the popular online encyclopedia in patents. The number of Wikipedia articles cited in patents in 2007 jumped to 293, almost three times the number cited in 2006.

Of course, this pales in comparison to other sources of scientific and technical information. Patents that cited IEEE publications totaled 14,440 in 2007. There were also 3,268 citations to ACM publications and 972 to Chemical Abstracts. Heavily cited science and engineering publishers included Elsevier (2,106), McGraw-Hill (1,089), Springer (1,538) and Wiley (2,963). Online sources are increasing in popularity: websites were cited in 10,870 patents issued in 2007.

E-Documents as Prior Art

Wynn Coggins, director for the USPTO's Group 3620 (Electronic Commerce), has written an article called "When is an Electronic Document a Printed Publication for Prior Art Purposes?