USPTO Tasked with Promoting Inclusive Innovation, Improving Prior Art Search Tools Under Commerce Strategic Plan

On March 28, the U.S. Commerce Department issued a strategic plan for fiscal years 2022 through 2026 designed to enhance American competitiveness through the 21st century in several critical areas of the economy, including broadband Internet and supply chain resilience. At several points throughout the Commerce Department’s strategic plan, the importance of intellectual property and the stability provided by certainty in patent rights are acknowledged as key contributors to spurring innovations that benefit American competitiveness against foreign rivals.

USPTO is Lead Agency on Strategic Objective to Advance U.S. Innovation and Entrepreneurship

The Department of Commerce’s strategic plan focuses on implementing programs that are designed to accomplish a series of five strategic goals: drive U.S. innovation and global competitiveness; foster inclusive capitalism and equitable economic growth; address the climate crisis through mitigation, adaptation, and resilience efforts; expand opportunity and discovery through data; and provide 21st century service with 21st century capabilities. Introductory comments from Commerce Secretary Gina Raimondo note that the plan is expected to amplify traditional American strengths, including innovation, by introducing a roadmap for collaboration on American competitiveness to which each of the Commerce Department’s 13 bureaus is expected to contribute.

Patents and IP rights are mentioned several times in the plan’s first strategic goal, to drive American innovation, and the U.S. Patent and Trademark Office will be the Commerce Department’s lead agency on Strategic Objective 1.5, which includes efforts to promote accessible, strong and effective IP rights to advance innovation and entrepreneurship. This particular objective has four strategic pillars: to improve equitable and affordable access to the IP system; to enhance patent quality and compact prosecution; to reduce trademark pendency and protect the integrity of the register; and to protect and enforce IP abroad. Key performance indicators for this particular objective include determinations of percent compliance with required patent review timelines for both mailed actions and remaining inventory, as well as compliance with all patentability statutes, average processing time for trademark applications, and the percentage of prioritized countries for which IP country teams have made progress on three of four performance criteria outlined in the foreign IP protection strategy.

Calls to improve equitable access to America’s IP system have increased in recent years even before the passage of the SUCCESS Act of 2018, which has resulted in USPTO reports showing that the women inventor rate has yet to pass 13 percent. Last spring, Congress attempted to direct the USPTO to collect more demographic data on women and minority inventors via the Inventor Diversity for Economic Advancement (IDEA) Act, although that bill has stalled in committee since last April. Within the Commerce Department, the agency will be tasked with collaborating with the Council for Inclusive Innovation and the U.S. Small Business Administration (SBA) to help independent inventors and small businesses obtain resources through other agencies to promote the commercialization of their inventions, as well as obtain both U.S. and foreign IP rights for protecting those inventions.

While help in clarifying Section 101 to promote certainty in patent rights requires action from Congress, the Commerce Department believes that the USPTO can achieve more reliability in patent grants without congressional action by providing for the timely issuance of high-quality patent rights. To that end, the Commerce Department is tasking the USPTO with expanding existing prior art search tools to improve patent examiner access to U.S. and foreign patent grants. To compact patent prosecution, the USPTO is charged with exploring opportunities to adjust the time allotted for examiner review of patent applications, improve sharing with foreign IP offices, and assess and adjust prosecution options available to patent applicants.

Trademark Examiner Academy, Ensuring International IP Commitments Among USPTO’s Tasks

New cancellation procedures established through the Trademark Modernization Act (TMA) of 2020 have expanded opportunities to declutter America’s trademark register of fraudulent and abandoned marks. The Commerce Department is looking to further support the register’s integrity by reducing applicant response time to initial office actions from six months down to three months, though trademark applicants will be able to increase their response time in exchange for a fee. Along with supporting the establishment of new cancellation and reexamination proceedings under the TMA, the USPTO will be responsible for creating an examiner training academy and enhancing information technology (IT) infrastructure to ensure that valid trademark registrations are only issued for authentic applications.

Finally, the Commerce Department’s strategic plan on intellectual property involves cooperation between the USPTO and the International Trade Administration (ITA) to ensure that U.S. patent applicants and patentees are able to effectively protect and enforce their IP rights abroad. This strategic pillar has four performance criteria, three of which must be met by prioritized countries for purposes of the relevant key performance indicator in this portion of the Commerce Department’s plan. These include: institutional improvements of IP office administration; institutional improvements of IP enforcement agencies; improvements in IP laws and regulations; and the establishment of government-to-government cooperative mechanisms. The Commerce Department is also tasking the USPTO with ensuring that international trading partners comply with IP commitments outlined in Special 301 reports by the U.S. Trade Representative, and with establishing new cooperative frameworks for monitoring progress on efforts by foreign governments to improve IP office administration and IP enforcement.

Under the Commerce Department’s strategic plan, the USPTO will be a contributing agency to Strategic Objective 2.3, advancing entrepreneurship and high-growth small- and medium-sized enterprises (SMEs), part of the plan’s overall goal of fostering inclusive capitalism. In particular, the plan directs the USPTO to collaborate with the Council for Inclusive Innovation to develop a national strategy that encourages participation in the U.S. innovation ecosystem for traditionally underrepresented classes. Development of this strategy will also involve participation from the Economic Development Administration and the Minority Business Development Agency. Further, under the plan’s Strategic Objective 3.4, aimed at embedding climate considerations across Commerce Department programs, the USPTO is expected to accelerate review of patent applications related to environmental quality, renewable energy and greenhouse gas emission reduction.

The release of the Commerce Department’s strategic plan coincides with the Biden Administration’s submission of its proposed budget for fiscal year 2023. News reports indicate that the White House’s budget includes $4.25 billion in spending authority for the USPTO, a funding increase of nearly $200 million over fiscal year 2022 spending levels. Doubtlessly much of that increase will go towards enacting several of the strategic objectives laid out in the Commerce Department’s recently issued plan.

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