The ink is hardly dry on the America Invents Act and Congress is already about to take money from the United States Patent and Trademark Office in violation of the promise of Congressman Rogers, who chairs the House Appropriations Committee.
It isn’t exactly a newflash to announce that Washington, D.C. is dysfunctional, anyone paying attention over the past few years has long since come to that conclusion. Thus, it is hardly breaking news to report that Congress is on the verge of passing a Continuing Resolution rather than actually doing their job and passing a budget for fiscal year 2012. Why do today what is required of you to fulfill the responsibilities of your job when you can just kick the can down the road? Of course, by so doing Congress will embark upon a path that will divert some $600 million from the USPTO during FY 2012.
As explained by a letter to Speaker John Boehner from the Coalition for 21st Century Patent Reform:
The fees under the America Invents Act will generate approximately $600 million in fee revenues in FY 2012 above FY 2011. Unless an anomaly is included in the CR, the USPTO will lose $50 million each month the CR is in effect. The problem is that during the 7 weeks of the CR, the USPTO is held to a spending rate based on last year’s appropriations — this rate ignores that the USPTO will be collecting significantly more in fees to support the implementation of the Act. Seven weeks is not an insignificant amount of time during an already very tight implementation schedule.
Of course, it could be added that the increased fees that go into effect on September 26, 2011, will simply be a 15% national innovation tax. So as you and your clients write those checks for that additional 15% surcharge rest assured that your funds will be egregiously wasted by a government bureaucracy that just weeks ago promised otherwise. But we all knew that the promise wasn’t worth anything. The Coburn Amendment was right there with plain and simple language, putting an end to fee diversion once and for all and it couldn’t pass Congress.
Herb Wamsley, Executive Director of IPO, put his finger squarely on the issue in his letter to Speaker Boehner:
In reality it costs taxpayers nothing to give the PTO access to its fees in the continuing resolution, but failure to provide the PTO an “anomaly” will not only delay the creation of desperately needed investment incentives and jobs but also undermine the trust that PTO stakeholders put in Congress when they supported the House-passed bill because of the commitments made by House leaders.
I must admit that I really didn’t put any particular trust in any politicians and I full well expected fee diversion to continue. If I am being truthful, however, I didn’t expect fee diversion to take place in FY 2012. I thought the promises made were to direct and too many important stakeholders were involved (many of whom are big donors) to have Congress retreat so quickly. Like those who placed trust in Congress to do the right thing, and those like me who just thought they would forestall doing the wrong thing, have been duped. But did anyone assume that the promises given would be broken within days of the Act being signed by President Obama? Even Tony Soprano would admire the intestinal fortitude it would take to embrace such two-faced thievery!
As the Innovation Alliance said best in a letter to Speaker Boehner, Minority Leader Nancy Pelosi, Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell:
[W]e are deeply concerned to learn that the CR does not contain the promised language. We strongly believe that for the reforms to work as intended, the promised language ending fee diversion must be included in all bills making appropriations for the USPTO. Without that language, the USPTO will not be able to discharge the new responsibilities vested in it by the America Invents Act, the ability of the USPTO to plan long-term and build the agency our innovation economy demands will be frustrated, and the job-stifling patent application backlog will continue.
It is nearly comical to hear politicians talk about job creation, making empty promises that they will focus 100% of their energy on the economy and creating jobs. If they can’t even allow 100% of the user fees paid by stakeholders in the patent process to be collected AND spent by the United States Patent and Trademark Office how seriously can they be taken? An end to fee diversion would undeniably create jobs because the USPTO could instantly hire more patent examiners, Administrative Law Judges and clerical staff. They could invest in IT infrastructure, which would benefit those companies getting the contracts. And they would process patent applications in a relevant time frame, giving entrepreneurs and small businesses the assets they need to protect fledgling technologies and raise critical funds to expand businesses and grow, which would also create jobs.
Why not start calling plays from the play book made up of plays that have succeeded in the past? When President Reagan was faced with a recession one of his key initiatives was to turn around the Patent Office, and it worked. By the end of President Reagan’s second term average pendency of patent applications was down to just over 18 months. It can be done, but we need political leaders who actually have a backbone, which is sadly asking too much these days.
UPDATE: The House of Representatives unexpectedly failed to pass a short term CR to keep the government running past September 30, 2011. See Reuters. The measure was defeated 195 to 230. Already speculation about a government shutdown is rampant. I don’t expect a government shutdown, but I do expect things to get a lot more interesting. Those in favor of the USPTO keeping 100% of their fees need to remain vigilant. (at 6:03pm ET)