This afternoon the House Budget Committee released a non-binding budget blueprint titled Building a Better America: A Plan for Fiscal Responsibility. As a part of this proposed fiscal year 2018 budget the House Budget Committee is proposing that the United States Patent and Trademark Office (USPTO) be made an independent agency.
On page 50 of the House budget proposal, under a heading discussing the elimination of overlapping Department of Commerce functions and consolidating necessary Department of Commerce functions into other Departments, the proposal includes the line item: “Establish the U.S. Patent and Trademark Office as an independent agency”. No further information is provided relating how that might be accomplished. The budget proposal does say, however, that the Commerce Department and its various agencies “are rife with waste, abuse, and duplication,” which is why House Republicans are recommending a different approach for the federal government supporting commerce moving forward.
“This is a very good idea, making it similar to NASA or the GSA,” said Q. Todd Dickinson, a partner at Polsinelli and former Under Secretary of Commerce and Director of the United States Patent and Trademark Office. “This was basically the intent of the American Inventor Protection Act back in 1999.”
According to Dickinson, who served as Director of the USPTO from 1999 to 2001, under the AIPA the USPTO was still to be an agency within the Department of Commerce under the policy authority of the Secretary, but by statute the USPTO was to retain responsibility for much decision-making. “Over time, however, Main Commerce basically abrogated the plain language of the AIPA and reasserted most managerial and budgetary authority,” Dickinson said.
Among the advantages Dickinson sees is that an independent USPTO would likely free itself from fee diversion problems that have continually plagued the Office, and it would also alleviate the USPTO from the burden of engaging in so-called “shared services” with the Department of Commerce, whereby the USPTO is being asked to pay for services the agency will not use. But some questions still remain. “One outstanding challenge is whether the head of the Office is still going to be responsible for IP policy issues in the Administration,” Dickinson explained.
The USPTO is the federal agency charged with granting U.S. patents and registering trademarks, and falls within the Department of Commerce. The USPTO advises the President of the United States, the Secretary of Commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement. The USPTO also promotes stronger and more effective IP protection around the world.
“Making the USPTO an independent agency confirms that patents are private property,” said Peter Harter, a government affairs consultant. “This move echoes recommendations by the Heritage Foundations.”
Meanwhile, there has also been at least some discussion of an independent Copyright Office circulating the halls of Capitol Hill. Earlier this year, on February 2, 2017, Congressman Tom Marino, a member of the House Judiciary Committee, introduced H.R. 890, known as the Copyright Office for the Digital Economy Act. H.R. 890, which has only two co-sponsors, would establish the U.S. Copyright Office as a separate independent agency in the legislative branch, to be headed by a director appointed by the President with the advise and consent of the Senate.
On March 23, 2017, Congress Bob Goodlatte (R-VA), the Chair of the House Judiciary Committee, introduced H.R. 1695, known as the Register of Copyrights Selection and Accountability Act of 2017., which seeks to make the Registrar of Copyrights a Presidential Appointment. The bill has 33 co-sponsors, with 29 of those co-sponsors sitting on the House Judiciary Committee. Thus, it is no great surprise that only days after it was introduced, on March 29, 2017, the House Judiciary Committee passed H.R. 1695 by a vote of 27-1. The House passed H.R. 1695 by a vote of 378-48 on April 26, 2017. A companion bill has been submitted in the Senate — S. 1010 — but no action other than introduction has taken place to date.