In this installment, the third and final segment of my interview with David Kappos, Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office, we learn from Director Kappos that the USPTO budget is not a problem whatsoever. While it is well known that the Office did not achieve a permanent end to fee diversion, less well known is the fact that Congress appropriated $2.7 billion for the USPTO for this fiscal year. The USPTO is NOT operating under a Continuing Resolution (CR) as is the case with most of the rest of the federal government. Furthermore, current projections have the USPTO collecting $2.5 billion in fees this fiscal year, so there will be a $200 million subsidizing of the USPTO by the General Treasury.
In this segment Kappos also says that the USPTO is looking to hire 80 more Judges for the Board of Patent Appeals. “Tell your readers, if you’re an experienced patent attorney and you want to have a great career move, we give you a robe and a wig and a gavel and you get to be a judge,” Kappos said. We also discuss the Detroit Satellite Office and Director Kappos’ thoughts on harmonization.
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.
Today the U.S. patent community sits perilously in the path of an oncoming train. The Leahy-Smith America Invents Act (AIA) Act mandates – but fails to fund – a wholesale conversion of the USPTO from an expert examining agency to one that not only examines patents but also adjudicates patent disputes in ways that promise to be faster and cheaper than patent litigation in our courts.
Senator Kyl is raising PTO funding on the Super Committee.
Without predictable funding, the Congressionally mandated reforms of the AIA will likely turn out like the agency’s “fast track” and Detroit office initiatives: announced, planned, but then delayed by the lack of one essential element – money. Indeed, without predictable funding, the reforms mandated by the AIA will likely result in a greater patent backlog, significant additional delay in finalizing the value of disputed patents, and a confused and discouraged agency workforce, all of which will significantly delay the recovery of our national innovation-based economy.
The coming train wreck would have been avoided if the 95 Senators who voted for ending fee diversion (with the support of every significant stakeholder in the otherwise-divided patent community) had had their way. It can still be avoided at no cost to taxpayers. And it can be avoided quickly, before Thanksgiving’s leftovers are gone, via the Super Committee. Let me explain.
Let’s back up and provide a little context. Dudas and Peters were there to provide insight into a variety of intellectual property matters from a regulatory perspective. Both gave brief presentations and then opened the floor for questions. Inevitably things turned toward USPTO funding and Director Dudas gave an extremely candid response, and one that will hopefully open the eyes of those who seem chronically myopic — namely the elite ruling class in Washington, DC. So let’s explore whether USPTO funding is like a ponzi scheme, shall we?
Earlier today President Obama signed the America Invents Act at Thomas Jefferson High School in Alexandria, Virginia. Patent reform is now a reality, and over the next 18 months there will be massive changes to U.S. patent law. The Patent Office has already been working on regulatory reforms to the Appeals process and to the Reexamination process, so with the changes in this legislation along with the rulemaking necessary to implement the law there will be little that remains the same by March 16, 2013, when all aspects of the legislation have gone into effect. Virtually nothing that you know about patent law and/or patent process today will be relevant come March 16, 2013.
There are certain aspects of the patent reform legislation that will go into effect immediately, or nearly immediately. One example of a near immediate change is the treatment of fees paid to the United States Patent and Trademark Office. Effective 10 days after the legislation is signed fees will go up at the USPTO, thanks to a 15 percent surcharge.
What should you expect from President Obama’s jobs speech tomorrow? Sadly, not much.
The president says that’s the fault of recalcitrant Republicans in Congress. Republicans in Congress say it’s the fault of a president who is hostile to business.
But the real reason we are not putting people back to work three long years into the recession is that Washington is afflicted with a totally-bipartisan cluelessness about how to create jobs.
As I argued in my “Labor Day Message for President Obama” in the Wall Street Journal last weekend, there is a great deal that the president and congress can do to create millions of new jobs quickly, if only they would stop their ideological bickering and instead “focus on a few practical, low-cost measures that we know will create lots of jobs quickly.”
What is cloture? Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes. Without 60 votes cloture fails and debate continues. Unfortunately for those who would like to see patent reform derailed, the fact that there was unanimous consent in the Senate for a cloture vote almost certainly suggests that there will be at least 60 votes to end debate on H.R. 1249, which will bring it to a vote, likely sometime later in the week of September 6.
The one thing in the Senate version of patent reform that everyone agreed on was the end to fee diversion. The House of Representatives, however, has decided that an end to fee diversion should not be included in patent reform, which is causing a great unease within the industry.
The Senate had struggled with patent reform for years, and in February 2011 they broke through with a carefully crafted balance. The Senate version of patent reform is light on “reform” in any real sense, except for one. The Senate voted to end the practice of diverting fees collected by the Patent and Trademark Office to other, completely unrelated purposes. The House of Representatives, lead by Congressman Hal Rogers (R-KY) who is Chair of the Appropriations Committee, demanded that the USPTO do with the amount of funds appropriators want to give the Office, not the amount of funds collected from users who pay for the Office. This is causing many industry groups to openly withdraw support and fight against patent reform; a remarkable turn of events.
Earlier this week two key House Republican leaders, Congressman Paul Ryan (R-WI), who is Chair of the House Committee on the Judiciary, was joined by Congressman Harold Rogers (R-KY), who is Chair of the House Committee on Appropriations, wrote Congressman Lamar Smith (R-TX) explaining that they oppose provisions in House patent reform legislation H.R. 1249 that would allow the Patent and Trademark Office to keep and use the fees collected to run the agency. See House Republicans Oppose an Adequately Funded Patent Office. This is an extremely myopic and ill conceived notion. The Patent Office is unlike other government agencies in that it is completely funded by user fees, takes absolutely no taxpayer funds and provides a valuable service for a fee.
Given that House Republicans seem to fear an adequately funded Patent Office I got to thinking — What could they be afraid of? With that in mind, here are the top 10 things that House Republicans just might be afraid of as they seek to oppose an adequately funded Patent Office. Can you hear the black helicopter squad swirling overhead, conspiracy theories in hand?
In a rather stunning development, key Republican leaders in the House of Representatives are opposing an adequately funded Patent Office. Indeed, the opposition to appropriate funding for the United States Patent and Trademark Office is becoming a political matter, and the language used to describe the issues suggests that Republicans seem to believe they can score points against the Obama Administration by opposing USPTO funding.
In a letter sent to Congressman Lamar Smith (R-TX), two key Republican Chairmen are opposing the USPTO funding mechanisms currently in place in H.R. 1249, which mirror those passed by the Senate earlier this year. Congressman Paul Ryan (R-WI), who is Chair of the House Committee on the Judiciary, was joined by Congressman Harold Rogers (R-KY), who is Chair of the House Committee on Appropriations, opposing provisions that would allow the Patent and Trademark Office to keep the user fees it collects, which are payment for services to be rendered.
The United States Patent and Trademark Office (USPTO) is seeking public comment on a proposal to streamline the procedures governing ex parte and inter partes patent reexamination proceedings. The timing of this announcement, which appeared in the Federal Register on April 25, 2011, seems curious to me. With patent reform circulating in the House of Representatives does this signal a belief that on the part of the Patent Office that patent reform is dead? The patent reform passed by the Senate and that being considered by the House has revised post-grant review proceedings, so wouldn’t it be wise to wait to revamp reexamination until after patent reform passes, that is if it seems likely to pass?
Happy World Intellectual Property Day! What, you didn’t buy a card or make dinner reservations? Did World Intellectual Property Day sneak up on you again this year? How could you let that happen? At a time when the United States Congress seems hell bent on destroying the patent system by inadequately funding the United States Patent and Trademark Office we really should celebrate something that seems to be functioning, so why not celebrate the World Intellectual Property Organization (WIPO) and the innovation policies of nations who are stealing research and development away from the United States? What a tragedy that the World has better innovation policies than the United States.
Funding for Fiscal Year 2011 has been a thorny issue for quite a while now. Congress did not pass a Fiscal Year 2011 budget in the Fall of 2010, as they are supposed to do. It is widely believed Congress punted on this responsibility because of the 2010 elections and fear of the electoral response to budget negotiations in the election cycle. That, however, lead to a series of Continuing Resolutions that funded the government on a limited basis. The last Continuing Resolution (or CR) ran out on April 8, 2011, with an 11th hour agreement, which was ultimately passed by Congress and signed into law by President Obama the following week. When the dust had settled the United States Patent and Trademark Office did not fare well at all, with $100 million be diverted from the Patent Office. That lead to the Office today announcing severe austerity measures because they don’t have the funds available to operate as a going concern.
ARLINGTON, VA — In April 12, 2011 letters to House and Senate leaders, the American Intellectual Property Law Association (AIPLA) expressed deep concern about the serious shortfall in the current legislation to fund the U.S. Patent and Trademark Office.
H.R. 1473, the Full-Year Continuing Appropriations Act, 2011, is the legislation reflecting the compromise on the Continuing Resolution to fund the government for fiscal 2011. The letters point out that the provisions of the bill related to the USPTO appropriate $100 million less than the projected user fee revenues to be collected, essentially diverting that money to other government programs. In addition, the bill lacks the appropriations “buffer” language included in previous bills to ensure that the Office may utilize the fee revenue that exceeds the original projected collections for the fiscal year.
Because of sufficient funding not linked to the current fiscal year, the United States Patent and Trademark Office will remain open for business and will continue to operate as usual through the close of business on Monday, April 18, 2011 even in the event of a government shutdown. The USPTO has enough reserves to operate for 6 business days even in the event of a government shutdown, and should a shutdown occur and continue longer than 6 days the USPTO anticipates that limited staff would still be able to continue to work to accept new electronic applications and maintain IT infrastructure, among other functions. Thus, USPTO employees are not in any immediate risk of a furlough due to the ongoing fiscal year 2011 budget battle being waged between Speaker of the House John Boehner, Senate Majority Leader Harry Reid and President Barack Obama.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
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