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Call to Action: Super Committee Addressing USPTO Funding


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: November 11, 2011 @ 7:15 am
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News broke several days ago that Senator Jon Kyl (R-AZ) has raised the issue of funding for the United States Patent and Trademark Office in his role as a member of the so-called Super Committee, which is charged with finding $1.2 trillion in budget cuts over the next 10 years. See Super Committee Considering an End to USPTO Fee Diversion.  This means the patent community has another chance to urge Congress to do the right thing and adequately fund the USPTO.  Everyone in the patent community can and should get involved and be heard — patent attorneys, patent agents, patent bar groups, patent bloggers, corporations, inventor groups, inventors and industry organizations such as the ABA IP Section, the AIPLA and IPO. It is time to get involved!

Many will recall that recently we came up to the doorstep of putting an end to fee diversion through the creation of a revolving fund for the USPTO.  The revolving fund proposed by Senator Tom Coburn (R-OK), would have tied a revolving fund together with taking the USPTO out of the appropriations process.  This would have meant that the USPTO would be guaranteed to keep 100% of the user fees collected without Congress being able to divert fees over and above what they specifically appropriated.  The revolving fund made it into the enacted America Invents Act, but not the part about taking the USPTO out of the regular appropriations process, which essentially just kept the status quo.

After the AIA passed funding issues at the USPTO worsened, despite reassuring promises by Congressman Paul Ryan and Congressman Hal Rogers to the contrary.  Because the U.S. government is operating under a Continuing Resolution (CR) the USPTO is on pace to have $800 million of user fees siphoned off by the Treasury Department for use on things other than the business of patents and trademarks.  Something needs to be done to address this problem and address it now!  The industry hasn’t come this close to permanently ending fee diversion for many years, perhaps ever.  Everyone has a stake in the outcome of this latest proposal, and everyone has a role they can play.  Individuals and industry groups must get involved and let the Super Committee know what needs to be done!

The Congressional Budget Office (CBO) has informally revealed that if the USPTO were taken off the typical appropriations process and allowed to keep 100% of their fees it would score the measure as saving $700 million over 10 years.  A long way from the $1.2 trillion needed, but everyone in the industry wants the USPTO to keep 100% of user fees and no one when asked ever advocates inadequate funding for the USPTO.  So if this will save $700 million over 10 years and everyone agrees shouldn’t it be a no-brainer?  If the Super Committee cannot agree to this then what can they ever agree to?

The 12 Members of the Super Committee are:

From the House of Representatives:

From the Senate:

There has to be some patent attorneys living in the portions of Montgomery and Prince George Counties represented by Congressman Van Hollen.  There has to be some patent law firms in Dallas with ties to Congressman Hensarling and/or the 5th District of Texas.  I know for sure there are patent attorneys in Ohio, Arizona, Massachusetts and Washington.  These are the folks who are tasked with the burden of finding $1.2 trillion to submit to Congress for a vote, and stakeholders in the patent system should reach out to them and express their views on funding for the Patent Office.  Businesses, firms and individuals within the relevant Districts and States will likely have the most influence, but anyone and everyone should stand up and be heard.  Who knows when, or if, there will ever be an opportunity as good as this to end fee diversion.

What can you do?  Call, write or e-mail the Congressmen and Senators on the Super Committee!  If you are not represented by someone who is on the Super Committee contact your Senators and Representative and urge them to do what they can.  Don’t know what to say?  Feel free to cut and paste what is below to send to Members of Congress.  You can also use what is below as a jumping off point for your own letter, e-mail or phone call.

For members of the Super Committee other than Senator Kyl:

I am a {REGISTERED VOTER or CONSTITUENT} and you are my {CONGRESSMAN or SENATOR}.  I am writing because I am concerned about funding for the United States Patent and Trademark Office, and as a member of the Super Committee you are in a position to do something.

As you know, the America Invents Act that was recently passed by Congress and signed into law by President Obama does not guarantee that the USPTO can keep 100% of the user fees collected.  In fact, since 1992 nearly $900 million in user fees paid to the USPTO has been diverted away from the agency by various Congressional Appropriations Bills.  This has to stop!  If the United States federal government operates under a Continuing Resolution for the entirety of FY 2012 another $800 million will be diverted this year alone.

Senator Jon Kyl has proposed that the Super Committee put an end to USPTO fee diversion by taking the USPTO out of the normal Congressional appropriations process.  The Congressional Budget Office has indicated that such a provision would be scored to save $700 million over 10 years.  While only a small fraction of the savings you need to find how could you not implement this proposal when it will lead to a better functioning patent system and help save money?

Adequately funding the USPTO just makes good sense.  For that reason, as a constituent, I request that you urge the other members of the Super Committee to include a revolving fund for the USPTO and take the USPTO budget out of the hands of Congressional Appropriators.

For Senator Kyl:

I am a {REGISTERED VOTER or CONSTITUENT} and you are my Senator.  I am writing because I am concerned about funding for the United States Patent and Trademark Office. I have read that you are trying to do something about this matter and I wholeheartedly support you in that endeavor.

I understand that the Congressional Budget Office has indicated that your proposal to include a revolving fund for the USPTO and carve out the USPTO from the normal Appropriations process would save us $700 million over 10 years.  It is hard to imagine that anyone would oppose such a reasonable approach to funding the USPTO and thereby ensuring user paid fees be directed to their intended purpose.  Nevertheless, there are likely some who will oppose such a common sense proposal and I want to encourage you to remain strong and steadfast.

We have an innovation economy and innovation will be what leads us to job growth and prosperity.  Adequately funding the USPTO just makes good sense.  For that reason, as a constituent, I request that you use all means of persuasion possible to urge other members of the Super Committee to adopt your proposal and once and for all put an end to fee diversion.

For Members of Congress not on the Super Committee:

I am a {REGISTERED VOTER or CONSTITUENT} and you are my {CONGRESSMAN or SENATOR}.  I am writing because I am concerned about funding for the United States Patent and Trademark Office.

As you know, the America Invents Act that was recently passed by Congress and signed into law by President Obama does not guarantee that the USPTO can keep 100% of the user fees collected.  In fact, since 1992 nearly $900 million in user fees paid to the USPTO has been diverted away from the agency by various Congressional Appropriations Bills.  This has to stop!  If you operate under a Continuing Resolution for the entirety of FY 2012 another $800 million will be diverted this year alone.

Senator Jon Kyl has proposed that the Super Committee put an end to USPTO fee diversion by taking the USPTO out of the normal Congressional appropriations process.  The Congressional Budget Office has indicated that such a provision would be scored to save $700 million over 10 years.

We have an innovation economy and innovation will be what leads us to job growth and prosperity.  Adequately funding the USPTO just makes good sense.  When adequately funding the USPTO can be accomplished at the same time as saving money it is impossible to justify doing anything other than adopting Senator Kyl’s proposal.  For that reason, as a constituent, I request that you use all means of persuasion possible to urge the Super Committee to include a revolving fund for the USPTO and take the USPTO budget out of the hands of Congressional Appropriators.

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Posted in: Congress, Gene Quinn, IP News, IPWatchdog.com Articles, Patents, US Economy, USPTO

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

12 comments
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  1. [...] now there’s an opportunity to let your voice be heard and influence the outcome. Check out this article from IPWatchdog.com to find out everything you need to know and how you can get [...]

  2. To the other inventors out there-

    This issue is especially important to us, as inadequate PTO funding will mean waiting for upwards of 4 years before our patent applications will have any chance of resulting in a valid patent. Besides that, it is Our money that Congress is swiping from the patent office, and it is somewhat like taking the seed corn of economic progress and using it to make a few tortillas for the present day, which is amazingly short-sighted and greedy.

    I wonder how many millions of jobs are locked up in storage at the patent office in the form of pending patents, awaiting examination by a woefully understaffed and inadequately equipped USPTO. Kappos and et al have been making outstanding progress with a very limited budget, and they deserve better than what the current situation presents, and so do we! Please Call your representatives, and ask for the staffer that handles patent issues, and explain what fee diversion means for you, and the future economic growth of the US.

    Stan~

  3. I find myself somewhat disappointed that patent practitioners have been so mute on this issue. I suppose that it will result in a lot more billable hours for many, which I find to be somewhat counterproductive in the final analysis. If your clients are hobbled by increased costs and less value for their inventions, you might find yourselves looking for new jobs in the next few years. No Inventors, No Jobs. Leahy and et al would like to see all of us independents just go away in favor of their corporate *clients* I would imagine, which I tend to think is a bit treacherous after US patent law has made the US the most innovative place on this planet Earth for over 200 years. Somewhat tragic if he and his *customers* actually think they have *fixed* anything at all. They have in fact given away perhaps 50% of my patent rights, just because some mucky-muck at MickeySoft or IBM seems to think it is a good idea and in their favor. How greedy and selfish is THAT? No independent light bulbs, no telegraphs at all, and no phones either. Just a corporate Brave New World, and no dissension or independent inventors are allowed. I would suggest that Mr. Leahy needs to step away from my patent rights, because I have personally witnessed him being amazingly clueless in that regard. How is it that one Senator can destroy much of the value of US patents with a paying corporate sponsor? (Their initials are IBM and Microsoft, as just a wild guess, although Cisco, Intel, Apple and several others are also complicate) Millions of dollars, meant to apparently make folks like myself go away and be silent or otherwise be put out of business. It will probably come back to bite them, and much sooner than they might have imagined. (Corporate guys never seem to get that!)

    Stan~

  4. I guess I’m fortunate to live in a district represented by a “super committee” member, so I wrote him my own letter, only straight from the heart from an Examiner’s point of view (not that Gene’s templates were bad)! The crux of the message — END USPTO FEE DIVERSION!! :)

    Mr. Xaminer

  5. Thank you Mr. X, as your opinion might be of great value to folks trying to make up their minds about how to proceed in a Congressional sense. I am just a lone inventor, who desires that Congress does the honorable thing, and support like yours goes way past any particular price. I tend to think that this gambit is going to work, or at least I dearly hope that it will.

    Finest regards,
    Stan~
    Turbine with Automatic Pitch Control

  6. BTW-
    My Senator Patty Murray (D-WA) has always been a champion of the everyman, shall we say, so I really expect her to support Senator Kyl’s efforts. I will be doing my best to remind her of her responsibilities to the inventive folks that reside here in Washington state, which has been known for it’s ability to produce new and valuable innovations for at least the last 50 years or more. Think Boeing, and the invention of three-point hydroplanes for another example, by Ted Jones, who used to be an engineer at Boeing for a few decades. His Slo-Mo-Shun IV design took the Gold Cup away from Detroit circa 1952, and the Seattle Seafair races didn’t let them or anyone else have it back for about 10 years or so. Did I mention the Blue Angels, that have been a permanent fixture at the races for about 50 years?

  7. Stan,

    I know of several of us practitioners that have been anything but mute. I personally have emailed and called my representatives, explained (more than once) the dynamics involved and have received polite thank yous but we are going to vote just how we are going to vote anyway.

    Perhaps one solution would be to have actual campaign finance reform and outlaw ANY donations to particular representatives…instead creating a general coffer of that all contributions are mixed into (and no special interest shenanagins permitted)…

  8. BD-
    Actually I have heard some noises regarding Campaign funding reform in the last few years, but it will of course will have to wait until after the next election cycle in 2012. Near as I could tell, it would mostly shut down direct campaign contributions from lobbyists or their clients, but good luck getting something like that made into law!!

    During the 2007 Patent Reform attempt alone, I heard reports that more than $100,000,000 was spent trying to convince Congress folks that Patent Reform was a Good thing, and guess who had that kind of money to throw around? The 2007 attempt was arguably the worst attempt of the lot, and big IT shot themselves in the foot by trying to be too greedy in trying to make everyone else go away in my opinion.

  9. BD-
    Also a few ideas about contacting reps.. Call your local office, as Washington DC staffers are usually just hired guns from a pool of staffers there. In my case I got Dylan in Seattle, and he said he would pass my message along (most times they record phone calls) Being a bit skeptical as I have become, I then sent a detailed e-mail message to them as a follow-up to help them understand the issues a bit better, and to remind them that I had sent a message directly to their *boss*. Even I am not optimistic enough to really believe that the Boss will actually ever see it or consider it, but they might think twice before dismissing my message out of hand. It went something like this;

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    Attn. Dylan

    I am writing to urge you to support Senator Jon Kyl’s efforts to end fee diversion of the fees paid by inventors like myself to the USPTO. With the passage of the America Invents Act,(the AIA)the USPTO will be required to adjudicate inventor disputes as to who is the actual inventor, which will represent an added burden that the USPTO will be responsible for. At the same time, the AIA discarded the fee diversion ban proposed by Senator Coburn that would have removed the USPTO funding from the Appropriations Committee’s control. Over the last ten years or so, Congress has taken about $900,000,000 out of the USPTO’s budget for unrelated uses, which I feel is a gross misuse of the fees paid for by inventors for the examination of their patent applications. The USPTO is one of only two government programs that are fully paid for by user fees, so the diversion of the user fees to the general Congressional budget is extremely unfair in my opinion.

    I urge you to support Senator Jon Kyl’s efforts to correct this situation by ending fee diversion, as inventors like myself have paid said fees, and need to have their patent applications examined in a timely manner, so that we can find adequate investment capital, and put perhaps hundreds or thousands of Americans back to work creating cutting edge new technologies.

    Sincerely yours,
    Stan E. Delo
    Aero Marine Co.
    202 W. Melissa St.
    Port Hadlock, WA

  10. PS-
    I sorta cheated by crossing State Lines and sending this to Senator Kyl’s office in Arizona this afternoon;

    Dear Senator Jon Kyl-

    Although I am a resident of Washington state, I would like to congratulate you on your very insightful efforts to prevent the diversion of fees away from the USPTO to the general Congressional budget. As you know probably more clearly than anyone, the importance of American innovation has made the US the most prosperous nation in the world in barely 200 years. Last I heard, Americans per capita invent about 6 times more often than the rest of the world, and the reason in my opinion is the existence of robust patent rights here in the US, with the assistance of a world class Patent Office that has traditionally awarded patent rights to the First to Invent.

    The recently passed America Invents Act (AIA) has changed this latter, much to my regret, but the worst part of the AIA has been to allow Congress to continue to divert USPTO funding to the Congressional general budget at My and other inventors’ expense. I would like to take this opportunity to Thank You for your efforts to prevent fee diversion in the future, as a member of the Super Committee. You might find an ally in your efforts if you talk to my Senator Patty Murray, as she has always had an open mind in the past, and I have been trying to inform her of some of the consequences of ignoring Intellectual Property rights here in the US lately. I know that you all have your hands very full right about now, but I would like to encourage you to walk across the aisle and get to know Patty and ask her for her support in this very important matter. I will continue to contact her and ask her to support your efforts, and I certainly hope that they are successful in more than one aspect.

    Sincerely yours,

    Stan E. Delo

  11. Thank you for this post and the draft letters to Congress. It’s fantastic news that we may have another shot at ending fee diversion. Congress’s pillaging of USPTO revenue via fee diversion is an unethical and inefficient practice that damages patent office efficiency — thereby harming both the job market and the economy — and costs money to boot.
    http://www.generalpatent.com/blog/

  12. Thank you for this post and the draft letters to Congress. It’s fantastic news that we may have another shot at ending fee diversion. Congress’s pillaging of USPTO revenue via fee diversion is an unethical and inefficient practice that damages patent office efficiency — thereby harming both the job market and the economy — and costs money to boot.