USPTO Bans Wikipedia

According to the Sept. 4 issue of Business Week, the USPTO has recently banned Wikipedia as an acceptable source of information for determining the patentability of inventions. Patent examiners and applicants have been citing Wikipedia articles in patents since at least November 2003… and not very many of them at that. A quick search of the USPTO’s patent database reveals that from January 2004 to the present only 74 patents cite Wikipedia articles. Compare that to 33,802 references to IEEE (Institute of Electrical and Electronics Engineers) publications. Other science and engineering publishers heavily favored by patent examiners and applicants include:

Association of Computing Machinery = 6,010
Elsevier = 4,493
Springer Verlag = 2,319
McGraw-Hill = 2,728
Chemical Abstracts Service = 2,274
Oxford Univ Press = 781
Society of Automotive Engineers = 968
American Society of Mechanical Engineers = 850
Society of Petroleum Engineers =706
Cambridge Univ Press = 639
Wiley Interscience = 545
MIT Press = 403
ASTM = 498
American Institute of Chemical Engineers = 207

Wikipedia did beat its arch rival Encyclopedia Britannica, which was cited in only 47 patents in the same time period.

Patent examiners and patent attorneys are highly trained (many have Masters or PhDs) and experienced professionals. The above stats show that most do know the difference between an authoritative source and a marginal or unreliable one. It may be that Wikipedia is the most appropriate source for some types of information. It’s another form of “gray” literature that is well-suited to emerging or interdisciplinary fields that don’t have established vocabularies or literature. Besides, critics of the USPTO have long complained that patent examiners allow too many patents, especially in the fields of computer technology and business methods, that should have been refused on the basis of prior art found outside the realm of traditional publishing, such as open source software archives.

The USPTO’s own rules state that “[a]n electronic publication, including an on-line database or Internet publication,” may be valid reference if it is accessible to the public. Wikipedia certainly fits both criteria. What about CNET, Gizmodo, Slashdot and other popular tech sites where people discuss gadgets, share hacks and speculate on the future of technology?

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10 Responses to USPTO Bans Wikipedia

  1. Anonymous says:

    This is a belated comment, but the problem is in the way patent examiners use the wikipedia entries. If a patent applicant is trying to patent a widget, it is perfectly proper to cite a paper or internet publication that pre-dates the applicant’s widget invention that shows how to make the widget. That’s proper prior art. That is, if the applicant files a patent application on the widget in 2004, the application may be published in 2005 and the product available in the market in 2004.If the examiner finds a CNET article published in 2001 that describes how to make the widget, the applicant doesn’t get a patent. What is happening, though, is a patent examiner will find a Wikipedia article that was published in, say, late 2005, and last edited today, that at some point says “Widgets were invented in 1995.” There’s no source for that, and no proof that it’s true. The examiner will then use that bare unsupported statement to reject the application, even though there’s been no showing at all that anyone knew about the widget before the applicant invented it.That’s a problem.

  2. Yes, that is a problem… But I would argue that it is a problem linked to inadequate patent examiner training and poor oversight, and not to a specific resource like Wikipedia.No patent examiner should be citing unsupported evidence or “facts” of dubious provenance as prior art. Especially when they have access to the best sci-tech research databases and publications in the world. The citation stats for show that patent examiners *are* using authoritative sources. The USPTO should train patent examiners to use the best resources in a given field of technology. In some cases, Wikipedia may indeed be the best resource. Training, not banning is how the USPTO should respond to Wikipedia and all wiki-based resources.

  3. Anonymous says:

    As of Jan 07, USPTO examiners are still citing Wikipedia articles as “relevant art” but not as “prior art”. Hence they are not rejecting claims based on Wikipedia citations.

  4. Anonymous says:

    I agree that examiners should not rely on Wikipedia articles saying this or that was invented in 1995. However, each Wikipedia page comes with a dated history log. For many topics you can reliably go back in time up to 2002 or so. A Wikipedia article posted before the date of priority is valid prior art. In my opinion the content should usually be regarded as common general knowledge. Indeed, the skilled person would nowadays consult Wikipedia like he would consult any other encyclopedia.

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