Can Google Book Search Help Patent Law?

So far as I can tell, until now the Google Book Search debate has failed to unearth a single, concrete example of why or how the program (or any program that creates a pretty comprehensive, searchable database of books) is a good thing. “Making knowledge more accessible for the good of humanity” is a nice catch-phrase, but it’s difficult to take that to the bank. Remember, the plaintiffs in Eldred v. Ashcroft had this problem: extending the term of copyright sure sounds like a bad thing to a lot of people, but it’s hard to put your finger on precisely why. The proponents of orphan work reform learned this lesson, and their investment in concrete examples undoubtedly helped to persuade the Copyright Office that the orphan works problem is a real one.

So I heard a very interesting thing at an IP association dinner tonight: The dinner speaker, the principal of a firm that does patent searches, described Google Book Search as “vital” to doing effective searches, particularly in the context of business methods patents. Remember that whatever your view of business methods patents generally, one major problem with distinguishing the valid from the invalid (and the obvious from the nonobvious) is that there’s an enormous amount of prior art out there — if only you can find it. Much if not most relevant prior art is non-patent art. Much of it is locked away in — books. Where it can be very, very difficult to find, unless there is some cost-effective way to search books. And that’s where Google Book Search comes in. It’s cheap, one-stop searching for snippets of text that tell searchers whether to stop, or to search further.

The result, I expect, is that as more and more patent searches incorporate Google Book Search, the searching will get better — and patents will get better (that is, patent quality should improve), particularly with respect to business methods patents. The example doesn’t justify Google Book Search in all of its details, but it does suggest that the integrated search facility that Google offers offers specific social welfare benefits that (hypothetical) search facilities that individual publishers might assemble cannot.