US Senators Offer Advice to Secretary of Commerce on How To Fix the USPTO

On Wednesday, a group of five* U.S. Senators sent this letter to the Secretary of Commerce. They're offering their advice on how to improve the examination process at the USPTO, to insure higher-quality patents.

My first reaction is to dismiss this out of hand.  What do these guys (yes, they're all men) know about examining patents?  I'm guessing, not much.

On the other hand, maybe what this needs is a fresh look from some outsiders.  And they offer five clear recommendations.

1. The USPTO should continually review and asses the operational examiner management system and performance metrics in place to ensure that they incentivize quality over quantity.  Examiner evaluation should particularly ensure that it does not improperly incentivize the approval of low-quality patents.

NOTE:  This is exactly right.  Make sure that examiners are only being rewarded for allowing good patents.  It's just like this:

2. Examiners should be clearly directed on how to ensure application records are fully built-out so that resolution of any ambiguity in the initial examination process is documented.  Application files should provide a clear history of clarified terms and original intent so that an approved patent cannot later be twisted to cover future inventions, and examiners should have clear guidance on the level of detail that should be provided as they document their communication with patent applicants during the examination process.

NOTE:  There's nothing that's worse than patents being twisted to cover future inventions.  Except, maybe, reading stuff written by people who evidently have no idea what they're talking about.  For example, they're not saying here that you shouldn't be able to write a broad claim that dominates a later, narrowly-drafted patent claim, are they?  Or are they?  I wish there was some way to resolve this ambiguity.

3. The USPTO has taken additional steps to address functional claiming concerns.  The effectiveness of these measures should be assessed to determine whether they are sufficient to address concerns that functional claiming provides a loophole from definite, precise claims and that nor all functional claims are held to the relevant standards.

NOTE: "Functional claiming concerns" apparently refers to the concerns some people have about claims that have functional limitations.  I presume they're not talking about means + function limitations.  It would be helpful here to have some clearer idea of exactly what they see as the problem.

4. As the USPTO continues to identify ways to improve patent quality and ensure claim clarity, it should expand the use of crowdsourcing and data analysis to identify types of patents and specific characteristics that are most likely to give rise to ambiguity and produce litigation risk and specifically target those areas for stronger measures.

NOTE: There's that "ambiguity" word again.  The way these guys are obsessed with ambiguity, you'd almost think that they'd never been to law school.   [I just checked - three of the five didn't go to law school, and Senator Begich didn't even graduate from college.  So maybe that explains that].

5. Finally, the USPTO should ensure public access to information about patents and there histories, which is one of the agency's duties.  In particular, continuing to expand the information publicly searchable on the USPTO's website is important.

NOTE:  Mission accomplished!

*Jeff Merkley (D - Ore.); Mark Begich (D-Alaska); Martin Heinrich (D-N.M.), Tom Udall (D-N.M.); and Mark Warner (D-VA).  BTW, the letter has space for eight signatures, but only five signed.  Why would you leave those extra three lines on there?  It just looks like three people backed out at the last minute.