Potential Patent Reform Measures Come Under Fire

In the June 26 edition of the Milwaukee Journal-Sentinel, Raymond Mercado argues against amending the Patent Reform Act to include a provision allowing for public challenges to the validity of new patents. Mercado is a doctoral student and author of “The Use and Abuse of Patent Reexamination: Sham Petitioning Before the USPTO.”

In his article, “Stop endless second-guessing; inventors need to know the government will protect them,” Mercado questions the Commerce Department’s claim that adding another layer of examination of newly-issued patents brought forth by the public would ensure only valid patents remain in existence, thus encouraging “industry to pay fair royalties for emerging technologies, while sparing it the expense of having to contend with frivolous patent lawsuits.”

According to Mercado, such re-examinations would be redundant and open the door to “additional fraud and abuse by those wishing to use intellectual property for free.” Mercado relates the hardships that inventors face when forced to wait for pending USPTO decisions regarding their re-examined patents. He states tying up competing patents in the re-examination process is a tactic used by those wishing to use patented technology without paying for them.

“Mercado shares an opinion held by many patent law enthusiasts,” comments Boyle Fredrickson shareholder James Boyle. “His contention that standards for re-examination need to be reevaluated, or at the very least enforced as they are currently written, is an argument that is gaining steam. Both sides of the re-examination argument believe their ideas of reform can help curtail the increasing patent backlog and ultimately spur innovation. However, with disparate opinions on how to best proceed with reform, it remains to be seen what changes come to fruition, at least in the short-term.”

For more information about the USPTO and the latest news in patent reform, contact your Boyle Fredrickson attorney.