Jessica M. Karmasek Aug. 12, 2014, 12:27pm

WASHINGTON (Legal Newsline) – In a letter last week, five U.S. senators called for improved patent quality and oversight at the U.S. Patent and Trademark Office.

Sens. Jeff Merkley of Oregon, Mark Warner of Virginia, Mark Begich of Alaska and New Mexico’s Martin Heinrich and Tom Udal, all Democrats, sent a letter Wednesday to U.S. Secretary of Commerce Penny Pritzker.

In the three-page letter, the senators, pointing to recent court decisions, made specific recommendations to address legal actions while continuing to encourage innovation.

Merkley said the 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.

As a member of the Senate Appropriations Committee, Merkley inserted language into the Fiscal Year 2014 Commerce Department law calling on the PTO to take 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.

“While it is important that our legal system uphold the rights of intellectual property owners to enforce those rights in court, abusive litigation raises questions about whether too many illegitimate 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 our intellectual property regime from being misused,” the senators wrote to Pritzky.

“From home builders to small businesses, far too many Americans that have little if anything to do with the innovation process have been negatively affected by abusive patent trolling.”

Generally speaking, patent trolls are patent assertion entities or non-practicing entities that purchase groups of patents without an intent to market or develop a product and then target other businesses with lawsuits.

The letter urges the PTO 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.

Click here to read the full letter.

The Main Street Patent Coalition, a non-partisan group that is pushing for an end to patent trolling, is backing the senators’ efforts.

The coalition, made up of more than a dozen trade associations, companies and small businesses, said it supports efforts targeted specifically at advancing patent quality and fairness, both by providing the PTO with more resources and by instituting a post-grant review system.

“We are grateful to the signers for bringing more attention to the existence of low-quality patents, which are the most significant component of any patent troll’s arsenal,” MSPC Manager Michael Meehan said.

“In order to be effective, comprehensive reforms should also address the abusive practices of trolls, including bad faith demand letters, and seek to minimize litigation costs for defendants in frivolous cases.

“Main Street businesses are vulnerable until something is done to slow the growing pool of bad patents and to stop the patent trolls who continue exploiting those wrongly-issued patents.”

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