George Nathanael is a JD student at Osgoode Hall Law School.

Wikipedia, the free online encyclopedia that is open for editing to the general public, with its 14 million articles in over 260 languages, continues to be a life-saver for students around the world. It seems like not so long ago when the dominant mentality was that online content should never be cited in scholarly work, and Wikipedia would have been a prime example of the type of source that should be avoided. Though many still adhere to this type of a standard, Michael White reports that the “number of U.S. patents issued last year that contain one or more references to Wikipedia articles totalled 809, a 59 percent jump from 2008”. Though this is still a fairly small percentage of the 17000 issued patents that contain URLs, and an even smaller percentage of the total number of patents issued, it is nonetheless an interesting trend.

The implication of Wikipedia citations in patents is that ordinary individuals, who may not have any specialized knowledge about the topic they are contributing to, can influence whether or not a patent is issued, and perhaps even any infringement claims brought up down the road. I would imagine that most patents containing references to Wikipedia would most likely do so for the purpose of explaining prior art. Though a person skilled in the art would still be the standard used to determine questions of novelty, obviousness, etc., the way prior art is described and explained in a Wikipedia article can still potentially affect a decision-maker’s understanding of the matter.

It can be argued that use of material from Wikipedia cannot be trusted for its correctness since virtually anyone is able to edit an article. Whereas, if one were to instead cite a peer-reviewed journal or other published source, it would be understood that the author(s) of an article there would have met some standards of rigour when submitting a work. However, one major advantage Wikipedia could have over a single source, is that a Wikipedia article may be more reflective of collective knowledge about a topic, since many of its articles have been edited by multiple parties. This collective knowledge may be preferred over a singular expert’s knowledge, especially since other ‘experts’ may have different opinions. Additionally, just because something has been given the blessing of a major publisher, it should not mean that a reader ought not be critical of the work. Such an outlook, whether considering an article from Wikipedia or one from an IEEE journal, is always healthy.

Of course, Wikipedia articles may have other potential issues that could hamper the integrity of the patent issuance process. For example, the anonymity of the edits and posts made to a Wikipedia article allow for few, if any, consequences for the authors for being wrong, which may make these online articles less reliable. Without knowledge of such basic information about the author, Wikipedia articles appear less credible. Additionally, just as with any other website, pages are constantly updated so that information that may have been on there when a patent is drafted may not be there by the time an examiner reads it. The time at which prior art is made available to the public is important, and determining when online information was actually available can be difficult, as explained here. However, despite the constant changes made to articles on its site, Wikipedia keeps track of past versions, each with its own permanent link.

To me it seems that an increase in Wikipedia citations in patents should be nothing to worry about, especially with respect to prior art, where a variety of non-scientific texts seem to be cited. I would think that this trend is simply an effect of the larger movement being culturally driven by Web 2.0 influences. As long as examiners are able to thoroughly review an application before issuing a patent, it should be left to their judgment as to whether specific references offer adequate explanations.

Posted in Patents