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USPTO Consults On New Fee Structure

by Glen Shapiro,, New York

10 February 2012

Under the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO), for the first time in its history, was given the authority to work with intellectual property (IP) stakeholders to set fees through the regulatory process.

"The new fee setting authority provided by the AIA has presented the USPTO with a tremendous opportunity to continue improving our nation’s IP system,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO, David Kappos. “The fee schedule we have published represents only an initial proposal and is far from final. We invite feedback and recommendations from the public.”

The agency has now taken a first step and has published proposed fees for all of the patent services it provides. It was said that, throughout the fee setting process, the USPTO will be guided by two overriding principles.

Firstly, the agency must operate within a more sustainable funding model than it has in the past to avoid disruptions in agency operations caused by fluctuations in the economy. Doing so requires that the fees charged for services more closely reflect the actual cost of delivering those services.

Secondly, the USPTO is adhering to the strategic priority set by the IP community that it should reduce dramatically patent pendency and the backlog of unexamined patent applications, in accord with the USPTO 2010–2015 Strategic Plan.

While it has, indeed, generally proposed setting and adjusting the patent fees to achieve cost recovery for service, it has also set some fees either below or above cost. For example, it suggests subsidizing filing, search, and exam fees to enable lower cost of entry into patent system, while setting supplemental examination fees slightly above cost to encourage applicants to provide all relevant information during initial examination, which facilitates compact prosecution.

It would also, where appropriate, set fees during patent prosecution so that an applicant pays the fee at a point in time where there is more information to make a decision about proceeding.

The USPTO has published such a proposed patent fee schedule and related supplementary information for public viewing on its website. It is planned that most of the new fees would be applicable from February 2013.

Two Patent Public Advisory Committee (PPAC) public hearings regarding the proposed patent fees are to be held February 15 and 23, 2012. After the PPAC hearings, the USPTO will publish its final proposed fee schedule in a Notice of Proposed Rulemaking, anticipated in June 2012, which will open a 60-day comment period for the public to submit written feedback directly to the USPTO.

TAGS: business | patents | law | intellectual property | fees | legislation | patent search | United States

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