But peer-review panels, like agency advisory boards and other professional commissions, are empanelled, not self-selected. Membership is closed. Even if their deliberations are posted online or made available after the fact, the public has no say over who participates and no voice in the process. People have no option to self-select on the basis of enthusiasm, rather than being chosen on the basis of profession. Even when not unduly subject to political influence, the decision as to who participates is based on institutional status. Those who may have meaningful contributions to make–graduate students, independent scientists, avid hobbyists, retired executives, and other consultants in the "free agent nation"–fall outside the boundaries of professional institutions and status and will of necessity be excluded, regardless of their intellectual assets.

Peer review is also time-consuming to organize and run. The group has to be selected, vetted, and approved, and because fights can arise over membership, conflicts of interest have to be identified and sorted out. Participants must also be convinced to join. It is, perhaps, in part because of the work that must go into maintaining a peer-review system that review generally happens only in limited contexts, and too late in the process to have the maximum impact on regulatory decision-making.

Nonprofessional Expertise

In contrast to what we see in government, in many other fields there is a move away from the preeminence of institutionalized professionals. Instead, technology aggregates and refines the knowledge of distributed, non-institutional experts. Patients, not doctors, are providing medical information to each other about cancer via the Association of Online Cancer Resources website and its 159 associated electronic mailing lists. Almost 30,000 citizen-journalists report on stories for OhMyNews.com. Amazon’s Mechanical Turk project outsources the work of answering simple questions or doing basic tasks to a distributed network. YouTube depends on amateurs to post video content. The Internet Movie Database (IMDb), which offers information about close to one million movie titles and more than two million entertainment professionals, started as a collection of movie trivia submitted by members of two online newsgroups. In South Korea, the Naver search engine, where Korean speakers answer each other’s queries, far outpaces Yahoo and Google as the most popular.

But how might this open, online collaboration improve governmental decision-making? How do we square the expertise and talent we see emerging via Wikipedia or YouTube with the professional standards of science to which we expect governmental decisions to conform? After all, Wikipedia has been known to contain errors and defamation. For every brilliant art film or newsworthy clip, there are thousands of pieces of video junk on YouTube. To put it bluntly, information quality may not be a matter of national security when it comes to a fifth-grade book report, but it is essential to nuclear regulations or environmental safety standards or the quality of issued patents. While we know that excessive reliance on professionals is problematic, we do not want to replace one set of abuses with another by eliminating the professionals and replacing them with direct, popular decision-makers.

Rather, we want to design practices for "collaborative governance," shared processes of responsibility in information-gathering and decision-making that combine the technical expertise of public experts with the legal standards of professional decision-makers. There are plenty of people with expertise to share if their knowledge can successfully be connected to those decision-makers who need it. It is not necessary to pre-select authenticated and known professionals when structures can be put in place to ensure that informational inputs are discernable, specific, well-labeled, and easy to search, sort, and use. An online system will not be without its own problems and abuses, but the assumption is that greater public participation, not in setting values but in supplying information or making sense of and connections between informational sources supplied by others, can substantively improve decision-making.

Peer-to-Patent

On June 15, 2007, the USPTO launched an experiment, the "Peer-to-Patent: Community Patent Review," which could become a model for precisely this sort of collaborative governance. The program solicits public participation in the patent examination process via the Web. This system (the design and implementation of which I direct in cooperation with the USPTO) allows the public to research and upload publications–known in patent law as "prior art"–that will inform the patent examiner about the novelty and obviousness of the invention and enable her to decide whether it deserves a patent. This is truly revolutionary: In the 200 years since Thomas Jefferson founded the patent office, there has been no direct communication between the patent examiner and the public.

"For the first time in history," David J. Kappos, vice president and assistant general counsel at IBM, says in the Washington Post, patent-office examiners will be able "to open up their cubicles and get access to a whole world of technical experts." With the consent of participating inventors, this USPTO pilot allows the self-selecting public to review 250 software-patent applications from such companies as CA, Hewlett-Packard, General Electric, IBM, Intel, Microsoft, Oracle, Red Hat, Yahoo, and several smaller firms. The community not only submits information, but it also annotates and comments on the publications, explaining how the prior art is relevant to the claims of the patent application. The community rates the submitted prior art and decides whether or not it deserves to be shared with the USPTO. Only the 10 best submitted prior-art references, as judged on the basis of their relevance to the claims of the patent applications by the online review community, will be forwarded to the patent examiner.

The USPTO pilot program is neither a blog nor a wiki. It is not a free-for-all for "software patents SUCK!" comments. Rather, the software is designed to provide a structured environment that solicits specific information targeted to the decision-making process. Eligible applications are posted online for review for up to four months. There is a shared discussion space, but it requires registration and joining the group committed to reviewing that application. The group can deliberate about the application’s quality, decide what research needs to be done, discuss where prior art may be found, and even divvy up the work of finding it. At the same time, the group has tools to "filter" comments in the discussion, identifying those that are most important, contain a request for follow-up research, or are low-quality "noise," thus mitigating the influence of the person who simply talks the loudest or the most. Private-sector websites–from the book reviews on Amazon to the movie reviews on IMDb to the news postings on Slashdot, the technology news site–have shown that these community ratings can be aggregated with surprisingly accurate results to sort and filter discussion.

While the discussion is designed to foster belonging and community and offer a space where ideas can be refined collaboratively, none of the discussion is forwarded to the agency, limiting the opportunity for undue influence. Instead, only the work that will be most helpful to the decision-making process, namely the community’s research and the prior art, are forwarded. Those who join an application community research the background to the application and share that research, helping to guide the governmental professional in her work. The research may help the examiner identify fruitful avenues for her search, decreasing the work done in that limited 20-hour window or, at the very least, shortening wild goose chases.

To be sure, the patent examiner still conducts a search. She has all the same information available to her as before. But now she also has the results of this "human database." By structuring the request for feedback, the agency avoids inviting participation it cannot use. And the public has an opportunity to participate in a way that is directly relevant to and will shape decision-making.

What’s more, through the software administrators can measure the level of expertise of public reviewers and thus better understand how this online participation process shapes that expertise. They can also measure the impact of public participation on examiner decision-making and on the resulting quality of the issued patent. Over time, with the benefit of greater experience and more data, it may become possible to introduce more refined algorithms for assessing the quality of information on the basis of the past performance of citizen-participants. We can also better understand and anticipate the ways in which those with an interest to do so will attempt to "game the system" (an unavoidable part of the process) and improve the practice accordingly.

Driving this pilot program is a combination of public attention to patent reform and the availability of the technology to do open peer review online. Patent reform has become the subject of intense, recent legislative debate in the United States and in Europe. The problem is not so much with the patent office itself as it is with the explosion in the number of applications, which has put enormous strain on an old system, resulting in the issuance of low-quality patents that subsequently become the subject of expensive and wasteful litigation. Given the doubling of the number of patent applications in the last decade, examiners currently have less than 20 hours to review an application about the most cutting-edge nanotechnology, the latest genetic bio-science, or the most controversial financial business method. In that time, they have to search the USPTO’s limited databases to determine if there is a prior publication that would reveal that the application lacks the requisite novelty or significance required. Yet publications–which go beyond traditional scientific journal articles and include websites, software code, and products–are not all to be found in this closed database. Examiners must also contend with poorly drafted applications. There is no legal duty incumbent upon inventors to do a thorough search of the prior art and submit it to the agency.