15 janvier, 2007 18:53
The Patent Office ( Getting Wiki With It )
By Alan Cohen
IP Law & Business
01-16-2007
In August, when the Patent and Trademark Office acknowledged that it had taken Wikipedia off its list of acceptable research sources, the surprise was not that the Web site had been banished, but that examiners had been using it at all. To its fans, Wikipedia is a remarkable collaboration: a gigantic, up-to-the-minute encyclopedia to which any user, anywhere, can contribute. To its detractors, it's the online version of the old "Saturday Night Live" game show, "Common Knowledge," where answers were determined by a nationwide survey of high school seniors. The joke was that every answer was wrong.
No doubt, Wikipedia's anyone-can-be-an-expert nature means that it, too, can get things wrong. The site also gets its share of pranksters. Recent entries have noted that a popular computer game was written by Mr. T, of television's "The A-Team" (not), and that one of the prime suspects in the assassination of John F. Kennedy was John Seigenthaler, Sr., the founding editorial director of USA Today (beyond not).
The key to using Wikipedia, say its supporters, is understanding Wikipedia: It's a jumping-off point for research, a place where users get background on a topic, and links to authoritative sources. It is not, on its own, a definitive source. Even Wikipedia's founder, Jimmy "Jimbo" Wales, has advised college students not to use the site for serious research. In comments made to BusinessWeek in September, patent commissioner John Doll said that Wikipedia had been used for background only, and not as a basis for accepting or rejecting applications.
But some patent lawyers say the line gets blurry, with examiners occasionally turning to Wikipedia -- and citing it -- when there was disagreement about what prior art meant. That, in itself, could boost, or sink, a patent application's chances. "They can use extrinsic evidence, but it must be reliable," says Scott Harris, a partner with Fish & Richardson in San Diego. "The problem with Wikipedia is that anyone can come on and say anything about anything." (If the PTO got a bit carried away, it was in good company: CNN.com, The Boston Globe, and even an appellate court in California have all cited Wikipedia content in published works.) The PTO's deputy director of public affairs, Brigid Quinn, says that the back-and-forth nature of the patent process allows applicants to respond if they think an examiner has used a resource inappropriately: "There are a lot of safeguards; they get at least 14 bites at the apple."
Meanwhile, the PTO has not banned other Web sites where content is easily modified -- and not always accurate. "It's a little strange that they didn't say you can't use blogs or other editable Web sites," says Harris. "You see cites to [these] all the time." Harris says Geek.com has been cited in a few recent rejections that he's seen. Quinn says that there is "no way to know every site out there," but the PTO is training examiners so they can determine on their own which resources are okay and which are not.
Indeed, compared to other sites, Wikipedia is a virtual Walter Cronkite. Its open-door policy may lead to errors, but its thousands of contributors act as something of a Wiki-police, constantly checking and correcting information. Still, who can blame commissioner Doll for giving the site the boot? We'd be mad, too, if our Wikipedia entry was just one sentence long-compared to five pages for Mr. T.
