Patents and Peer Review, kissing cousins?

Below follows a long comment that I posted to an article on O'Reilly Radar about patents.

The original blog post is here

There is an interesting compliment to the patent system in the domain of assigning credit to ideas, which is the academic peer-review system.

The inventor of the idea in the case of academia is the author. The equivalent to the patent office is the editorial board of the academic journal that the author submits to.

There is an idiosyncratic historical connection between the two systems too.Einstein famously worked as a patent clerk in Bern, Switzerland, before becoming a published academic.

At the time that Einstein was working the volume of patent applications was probably on a par with the submission rate of academic papers to peer reviewed journals, though I have no figures to back this up. In both cases an idea was submitted, examined by experts for originality and either accepted, granting the creator rights, or rejected, sending them back to the drawing board.

Fast forward to today and it seems that on the whole the two systems, work in almost the completely opposite manner from one another.

The peer review system continues to work much as it used to. An idea is submitted, reviewed, in most cases rejected initially, tweaked, re-submitted and possibly accepted. Scientists for the most part are looking for peer recognition though publication, and the career rewards that come with that through tenure and increased likelihood of earning academic grants. The micro-bio and nano fields are diverging from this template, but I'll get back to that at the end. I would classify this system as one in which the interrogation of the idea happens before the laurel is bestowed on the applicant. Contrary claims or claims of prior art appear as new publications in an ongoing conversation, but it is very rare for the reward (the citable paper) to be retracted. Working as a publishing editor for three years managing five academic journals I saw this happen with one paper, and even that that was considered unusual.

The patent system currently seems to work in completely the opposite way.The bar for having a patent approved seems quite low, but even after acceptance of a patent the rewards are not guaranteed until after the patent has been challenged in a court. The interrogation happens after the laurel has been bestowed, and only in cases where there is contention that there might actually be money to be made, which seems to be the real reward that drives people to patent their ideas rather than publish them.

Now why is this the case? I would offer this idea. Patent offices are essentially national bodies. This means that compared to the growth of academic journals there are relatively few of them. The academic system provides a distributed means of testing the goodness of the ideas, and so as the volume of academic submissions has risen the journal system has been able to scale with the growth and been able to cope.

While patent applications remained mainly technical it was possible for a centralized office to cope with the volume, but the advent of software patents has dramatically changed the balance. (I'm not saying that these ideas are essentially less valuable intrinsically, but rather that the explosion of people literate in creating though the medium of computer code has increased dramatically the volume of patents that are being filed). Under this increase in volume the national patent office system has simply broken. Where it now finds it's scalability is in the court system. There are lots of courts and lots of lawyers versed in patent law. I am not sure that any fix to the patent office, or to the information that is required to submit a patent is going to get rid of the problem of scalability as long as the office remains a centralized organization, but I might well be dead wrong about this.

In what could be a worrying parallel to the way that the patent system has gone the peer review system is beginning to experience strain. It is clear that it is key in the scientific process, however the vast numbers of qualified scientists coming out of China and India are beginning to greatly increase the submission rate to academic journals. The peer review system is beginning to creak under the weight. I hasten to add that it is working just fine at the moment, but consequences can be seen in the growing importance of various citation indices. A publication on its own is no longer sufficient for the advancement of most academic careers. It usually has to come with additional properties, such as being in a popular journal, being cited a certain number of times.

Another interesting development is that in some scientific areas patents are replacing peer-reviewed publications. I know of a few groups working on nanotechnology where they have results that could be published in a peer reviewed journal, but to do so might infringe on IP. In other cases the revenue from industry that the groups are attracting mean that at the moment they don't have the time to commit to writing up their results for peer-review.

Are the two systems getting closer again?

Could the patent system benefit from having different levels of quality in the way that the peer-review system has different quality journals? A gold-standard patent requiring full code disclosure and bug-free running program, with a bronze-standard patent being equivalent to the current level?

How can both systems utilize collective intelligence to alleviate the numerical and informational pressure that surrounds the act of review?

Though a word of caution, if you have answerers to the above questions you should probably patent them, shhh now.