Scientific Expertise in Policymaking: The Case for Open Review and Patent Reform

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The expertocratic agency relies on internal expertise in order to develop policy in the public interest. This is nowhere more the case than in the United States Patent and Trademark Office where the need for secrecy surrounding patent applications has entrenched a conception of the agency as expert. While the first patent examiner, Thomas Jefferson, consulted Joseph Hutchinson, Professor of Chemistry on March 12, 1791 to seek his advice in connection with a patent on an alchemical process, modern patent examiners labor independently under a backlog of 1 million applications with no more than 18-20 hours to decide on the 20 year grant of monopoly rights. The patentability determination, as much if not more so than any regulatory rulemaking by the EPA or FDA, depends upon knowledge of science. Yet examiners lack the requisite knowledge to examine patents adequately. Examiners are prohibited from consulting outside sources, often including the Internet. Still over 90% of applications are granted. This paper argues that the distrust of scientific expertise produces an information deficit that results in poor quality patents. It views patent examination as a case study, illuminating a general problem with administrative policymaking, namely the lack of accountability to and input from scientific experts. The Article puts forward a solution: “open review.” Under this model, scientific experts provide input to the agency by means of an online network; that expertise is directly tied to ultimate legal decision-making. Unlike ordinary peer review, called for in the Information Quality Act, open review adopts a broader vision of collaborative expertise that cannot be manipulated. By being both more expert and more participatory, it avoids the problems described in the literature on science in policymaking. Unlike other proposals for ex post patent reform, open review addresses the core problem of information deficit that cannot be solved by the courts. At this juncture when patent reform is uncertain to move either through Congress or the US Supreme Court, focusing our attention on the role of scientific expertise in agency practice may be our best opportunity, not only to bring about much-needed reform, but to do so in ways that are data-driven and empirically measurable. The United States Patent and Trademark Office agrees with the assessment: it will implement a pilot of open review in 2007