What is the difference between Elsevier's 'waterfall system' and 'cascading peer review'?

Question

A lot of people are grumbling about USPTO 9,430,468, "Online peer review system and method", which describes (if I'm reading it right) Elsevier's system of reallocating papers rejected from Journal A to a potentially more suitable Journal B. Parts of the patent describe the general process of peer review and (partly because of this) some of the criticisms currently circulating seem to think that this is a patent on the process of online peer review itself, which would clearly be ridiculous. However, the Electronic Frontier Foundation has picked this as its 'stupid patent of the month' for August, pointing out various examples of a similar process called cascading peer review dating back to at least 2009 (example 1; example 2). Eff clearly has concerns about the novelty of this patent.

My question: what, if any, are the differences between Elsevier's now-patented 'waterfall system' and 'cascading peer review'?

(I'm not sure if this would be a better fit for Law.SE, but thought the audience here would be more familiar with the important areas of the peer review process)

Answer 1

I managed to get some more information on this from William Gunn (@mrgunn), Director of Scholarly Communications at Elsevier. So not an official legal statement from a patent lawyer, as he notes himself, but a plain-English explanation from someone familiar with publishing and who has had a chance to ask the people involved, which is pretty much everything I could have wanted. Short Twitter-transcript follows (stripping out Twitter tags; otherwise as written); I'll probably try to come up with a better way to format this later.

• @MrGunn: "The Elsevier legal team says this just covers our implementation & is defensive." (https://twitter.com/mrgunn/status/777989863748448256)

• @MrGunn: "IOW [in other words], not to be used to sue anyone else, just to prevent us from getting ripped off" (https://twitter.com/mrgunn/status/777990251667087360)

• Me: "Thanks, that's helpful. So what makes system distinct? How do you tell if ripped off?" (https://twitter.com/arboviral/status/778146459044745217)

• @MrGunn: "(making room) It's common for software companies to patent their implementations of a more general process. That's all this is." (https://twitter.com/mrgunn/status/778269748236685312)

• Me: "thanks - that helps. So it would only be enforced if someone literally copied the Elsevier code and tried to pass it off as theirs?" (https://twitter.com/arboviral/status/778497951232618496)

• Me: "Well, not necessarily line-for-line, but if you had reasonable suspicion that they'd used the Elsevier system as a starting point?" (https://twitter.com/arboviral/status/778498336156418048)

• @MrGunn: "Enforceability of software patents is not a subject I know very much about, but I would guess so." (https://twitter.com/mrgunn/status/778606526160175104)

So it's not intended to cover the general process of cascade reviewing, but only the specific implementation used by Elsevier.

Answer 2

Cascading Peer-Review is the result for focusing on reducing costs and improving efficiency (specially time and improvements on network of journals), many publishers have implemented services to redirect rejected manuscripts to related journals within their field.

It seems the “Waterfall Process” is the same with Cascading Review in the first glance. However we are not lawyers to judge this matter. It can be fully determined by professional review of the claimed patent. But it seems in overall, as EFF states: "The waterfall idea was not new in 2012. The process had been written about since at least 2009 and is often referred to as cascading review."

Answer 3

This answer is purely speculation.

Looking the file over, there does not seem to be much difference between the Elsevier system and other peer reviewing systems that have already been in operation. It doesn't look to me like there is enough innovation there for patent protection to be warranted, but I am not a lawyer, so I may be misunderstanding the technical language and/or the standards for patentability.

However, the fact that the Elsevier system is named "waterfall" suggests to me that it was originally developed without any expectation that it would be patent worthy. Indeed, I suspect that the name was chosen specifically to point out that the "waterfall" package was Elsevier's in-house implementation of cascading peer review. "Cascade" and "waterfall" are synonyms, although "cascade" is more general and has a standard metaphorical usage that fits well with the description of how "cascading peer review" works. I find it difficult to envision how somebody could come to the name "waterfall" for the process unless they already had the "cascade" terminology in mind. (Of course, the people designing the system were likely fluent but non-native English speakers, so they may have seen the "waterfall" analogy as more apt than I do.)

Eventually, people higher up noticed the well-implemented peer review system and, in consultation with Elsevier's legal team, decided to try to patent it. I suspect that these people were largely unaware of the extent of prior art in this area; in particular, they did not recognize that "waterfall" was an implicit reference to the existing "cascade" framework. Or if they did, they thought that cascading peer review was too obscure for the similarities to be noticed; and they were right insofar as the patent was granted.