Merkley Leads Senators’ Call for USPTO to Improve Patent Quality, Pave Way for Innovation

WASHINGTON – Today Oregon’s Senator Jeff Merkley sent a letter to the U.S. Department of Commerce to call for the U.S. Patent and Trademark Office (USPTO) to take several key steps to improve the quality of patents and make the patent examination process more comprehensive and more efficient. By focusing up front on the quality of the patents it approves, the USPTO can reduce the frequency of abuses and litigation later by patent assertion entities (so-called “patent trolls”) that take advantage of weaknesses in the quality of patents to harass consumers and businesses. Even for patent owners who engage in legitimate actions to protect their rights, low-quality patents drive up costs and impair their ability to invest in innovation.

In the letter, Sen. Merkley urges the USPTO to curb abusive patent trolling by ensuring that low-quality and vague patents do not enter the market. Also signing the letter were Mark Begich (D-AK), Martin Heinrich (D-NM), Tom Udall (D-NM) and Mark Warner (D-VA).

The  senators’ recommendations would make the patent process work better for all actors involved, including universities, small inventors, and small businesses, and would foster innovation and technological advancement.

“From home builders to small businesses, far too many ordinary Americans that have little if anything to do with the innovation process have been negatively affected by abusive patent trolling,” the senators wrote in the letter. “[…] We believe one of the best ways to address abusive legal actions that stem from overly broad assertions of low-quality patents is to ensure patents are high-quality from the start.”

The letter states that abusive patent trolling and litigation raises questions about whether too many low-quality patents are being issued, whether vague patents are being stretched to cover ideas never envisioned by the patent holder, and whether more can be done to protect the intellectual property regime from being misused.

The letter urges the USPTO to focus its resources on the following five measures: improving examiner incentives; strengthening examiner guidelines and documentation practices; ensuring all patents, including “functional claims,” are clear; expanding crowdsourcing to identify problematic types of provisions; and increasing public access to patents and patent history online.

In his capacity as a member of the Appropriations Committee, Sen. Merkley inserted language into the FY2014 Commerce Department law calling on the USPTO to take key steps to improve patent quality, specifically to increase examiners’ industry expertise and to increase the use of patent law provisions that reduce ambiguity and make it easier to reject low-quality patents.

The full text of the letter is available here