Written by Mark Terry

The Patent Transparency and Improvements Act (Bill, S. 1720), seeks to improve transparency and to remedy problems associated with patent trolls and others that file frivolous lawsuits using their patents.

Trolls are turning out to be a formidable opponent to the patent reform process by engaging in some heavy lobbying. Trolls have cost companies billions of dollars due to weaknesses in the patent system. As a practicing patent attorney I walk a fine line between writing a claim that is so broad it is enforceable, and writing a claim that is so narrow, an  infringer can make a minor change and avoid the patent.

The trolls are doing a good job of highlighting a flaw in the patent system. Unfortunately, although I am not condoning trolling by any means, I think that banning the trolls won’t solve the problem. A better solution would be to beef up the expertise at the USPTO in the area of examining claims, in order to ensure that granted patents have a very high chance of being upheld and enforced. For instance, the Patent Office should consider raising the bar for the level of inventiveness required. Software patents have come under fire as of late due to that very issue. Too many of them are just too broad and don’t have a very high level of inventiveness.

More recently, Michael Lewis, the author of Flash Boys has helped uncover a major flaw in the stock market trading system due to speed traders. He clearly states that it is not illegal, but it’s a flaw in the system that has helped create this business mode, which has made speed traders very wealthy while costing others billions. Doesn’t this sound similar to what the patent trolls are doing?  Smart people adapt and find weaknesses and opportunities (some call it gaming the system), which is fine until it becomes unfair and immoral. Passing bills and barring certain groups may be a short-term fix, but ultimately the entities in charge of governing the patent process (the USPTO, the courts, etc.) need to be more aware of what’s going on and therefore adapt more quickly to the times. They need to help make the playing field as fair as possible by re-examining their processes based on what’s going on in the private sector.

On a final note, if lobbying groups dictate the course of the patent reform we will surely lose control of what determines the  enforceability and ultimately the value of a patent. The USPTO has a duty and responsibility to proactively ensure that procedures are in place to protect the integrity of patents.

To receive an evaluation of your patent portfolio or of a patent troll’s allegations of infringement, please contact me at 786-443-7720 or [email protected].