© The Author (2006). Published by Oxford University Press. All rights reserved.
Editorial |
Veni, vidi, wiki
‘Veni, vidi, vici!’ (‘I came, I saw, I conquered’), Julius Caesar's memorable soundbite from the Battle of Zela in 47 BC, has been for nearly two millennia a byword for the triumph of the new order over the old. Substitute the homophone ‘wiki’ for ‘vici’ and the symbolism remains apt. While the rise of the personal computer, the development of the internet and the advent of mobile telephony have each been hailed as the greatest transformative feature of the Information Age, a new candidate has recently stepped forward for consideration—the wiki.
The concept of the wiki is as old as the quest for shared knowledge itself. Information is posted on a publicly accessible medium. Once in position, that information may be read as it stands. It may also be the subject of additions, verifications, corrections and cross-references on the understanding that every stage in the progression of that piece of information from private utterance to public truth is open in turn to the same procedures of amendment and correction. The result will either be the truth or at least the perception of truth that is most widely held by those persons who are most concerned with its publicly accessible formulation.
Intellectual property is a body of law that meshes in closely with the concept of the wiki. It protects both individual and collective creative effort in the articulation of works; it values both the myth (as in copyright protection for fiction) and the truth (as in patent protection only for inventions that are in accord with the principles of natural law); above all it encourages the making public of all forms of expression. This editorial is however concerned with two very narrow areas of application of wiki philosophy to the world of intellectual property, the wiki being not so much She Who Must be Obeyed as a humble handmaiden in the service of the IP community.
First, this journal notes with unmitigated approval the pilot initiative of the US Patent and Trademark Office and IBM to utilize the power of the wiki in the examination of the claims of pending patent applications. The complexity of patent examination is legend, as are the difficulties faced by patent granting authorities in recruiting, training and retaining high calibre staff to examine leading edge patent applications. The proposal, floated by New York academic Beth Noveck, would see patent applications posted for comment by the applicant's peers and competitors and by other interested parties. This process would enable patent examiners to undertake their task armed with information concerning prior art.
Apart from equipping patent examiners to make better-informed and more accurate decisions, the proposal has also the potential for enabling applicants to withdraw or amend their applications rather than battle blindly through a process over which, without knowledge or power, they have no control. Once granted, a patent that has run the gauntlet of peer review at the application stage might reasonably be expected to be more robustly resistant to validity challenges too. Without entering the debate as to whether this proposal is strictly a wiki, one can see that is very much in the wiki spirit since the posted patent application is subject to external influences that may influence its final form and determine its fate.
A second, more traditional wiki proposal may make a fundamental impact on intellectual property practice as we know it. This is the establishment of wikis that contain an integrated source of legal information—treaties, statutes, subordinate legislation, practice guidelines, case law and official decisions—that would be freely accessible to all, but once again subject to amendment and addition by all.
Verification of information is vital in this context, since errors cannot be allowed to creep into statute. The commitment of the intellectual property community in each jurisdiction is vital too: someone has to do all the dull work, of which there is a great deal, in updating minor and rarely used provisions. However, the advantage of having the sources at your fingertips when you need them, rather than only after a commercial publisher has packaged this largely free information and sold it back to you, are vast—as is the potential for cost-savings. Private initiatives by legal information expert Martin Farley and by David Pearce (Eric Potter Clarkson) in the United Kingdom have already stimulated interest; it is inconceivable that similar initiatives have not been contemplated in other jurisdictions.
Since a brief Editorial is no place to analyse the place of wikis within IP exhaustively, this journal looks forward to carrying articles on the inexorable progress of the wiki towards the brave new world of informed, interactive cooperation.
Footnotes
*Editor, Journal of Intellectual Property Law & Practice 
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