You left out an obvious choice – don’t pay any more than today.

While this may seem to not solve the problem, it merely refocuses it. Let’s give back to the Office all of the money that has been skimmed off by Congress over the years (with interest) and let’s let the Office keep its collections.

Would you rather pay $2K more for every patent application, or let the “kings” pay $20K for fast-track which in turn would give the patent office more resources to speed up normal applications with no fee increase? The problem is that the $2K would become the “new normal” so we’d all have to pay it to be competitive and satisfy our investors, and the overall reduction in pendency would probably be about the same as having 10% (the “kings”) pay $20K. As an inventor and founder of two start-ups, I have personal experience in raising investment capital and you _have_ to put a value on your technology if you want to get capital. You don’t have the luxury of waiting years to find out the future market value. Smart investors expect you to make an educated _forecast_. If you wait for a patent to issue first, even a fast-track patent, you will have probably missed the market opportunity.

the business worth of a patent is not realized well into the patent’s life and thus is impossible to correlate with any type of application processing fee.

Plus you ignore the reality that fledgling businesses are more cash strapped than established giants (who are more than able and willing to throw cash around). Thus, the “benefits all applicants” does not hold.

In other words, your answer backs up my supposition rather than defeats it.

The higher fee should be based on economic demand. In other words, it should be based on the business value of faster issuance to the applicant, not the cost of faster issuance to the patent office. In my opinion, probably about 5-10% of applications would actually need fast track issuance for business reasons. If more than than apply, the fee is too low. If fewer apply, the fee is too high. As a result, the added revenue from the fast-track fees would also help subsidize the regular track, reducing pendency across the board. That would benefit all applicants.

But wouldn’t this just feed the philosophy that patents are the sport of kings?

I would agree that for $2K almost everyone would use the fast track. Which of course means it would immediately become just as slow as the current track and thus fail to solve the problem. Few start-ups need the fast track. Investors are forward-looking and fully capable of valuing patent-pending technology. The important thing is that the patent was timely applied for. In some cases a quicker issuance may be desirable, such as for a hotly contested technology by one or more prospective competitors/infringers. But that is the exception rather than the rule. Usually competitors don’t get interested until they see evidence of commercial success by an upstart in taking away their business. Even a published application is likely to go unnoticed until it materializes into a commercial reality. The fast track fee should be significantly higher, making it a business decision by the investor whether to factor it into the amount of funding required.

I might also be as bold as to applaud the fellow from Australia on his apparent wisdom in this regard. Patents are really just tools, it would seem to me. The entity in question will have to decide on a case by case evaluation of how important any particular tool might be. Whether it is a new lathe or seeking possible patented status is beside the facts in my opinion. The bright line would seem to be if acquiring a patent is a lot more expensive than being able to afford tooling up to produce real products at a price that most can afford. If you can’t or won’t do that, you are probably history anyways.

Cheers,
Stan~

Good points. Let me see if I can get some info.

One thing to keep in mind is increased demand. Right now many start-ups and small busineses don’t apply because it takes so many years and a patent is therefore not always an attractive vehicle to attract investors. If a patent could be obtained in 12 months for another $2,000 a lots more would likely use it.

Sent from iphone

Good point. The issue, however, is surely not how many small businesses and startups there are, but how many applications they file, and may wish to accelerate, as a proportion of the total.

I could not find a statistic on this, but I did find that in 2009 the top 50 patent recipients accounted for 26,325 out of a total of 191,927 patent grants. Of these, 14,475 went to foreign entities, and 11,850 to US corporations. The total number of patent grants to foreign entities was 84,967.

[ Links: http://www.ificlaims.com/IFI%202009%20patents%20011210%20final.htm ; http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm ]

Assuming that the top patenting companies and most foreign entitles will not accelerate, this leaves 95,110 patents granted last year to US entities outside the top 50. Bearing in mind that the bottom of the top 50 is 385 grants (more than one per calendar day), and small businesses/startups may be built on one key patent (or at most a handful — after about five years my startup client has about 12 families), it doesn’t seem that probable that the most likely candidates for accelerated exam make up more than 10% of the total.

@IANAE: (on third-party exam requests)

The system in Australia, for standard patents, is that any person may ask the Commissioner to issue a direction to an applicant to request examination, and she then MUST do so. There is no fee to the third party, and the applicant then has the standard six months to file a request and pay the exam fee. This mechanism is hardly ever used. I have never done it on behalf of a client.