Here Come Higher Patent Fees, But "Improvements" Remain Cryptic
Under the Obama administration's proposed budget, the U.S. Patent and Trademark Office would get a 23 percent boost over last year to deal with the immense patent backlog and an out-of-date IT system. However, in a system funded by owners of patents and trademarks, that is going to mean 15 percent higher fees.
The FY 2011 budget request projects fee collections of $2.098 billion. In addition, the administration is proposing an interim fee increase on certain patent fees which is estimated to generate $224 million. The administration continues to support granting the USPTO fee-setting authority as a significant part of a sustainable funding model that would allow the director to propose and set fees in a manner that better reflects the actual cost of USPTO services.Those who depend on intellectual property know full well the cost in the U.S., because the filing and maintenance fees they pay underwrite the system. For years, the U.S. Patent and Trademark Office has been self-sustaining, and often has had to throw off extra dollars that Congress would then channel into other activities. But let's be realistic for a moment. Interim fees? Everyone who truly believes that the fees will shrink again at some point in the near future should email me, because I have a bridge I'd like to sell.
The president's budget request for FY 2011 will support a five-year plan designed to enable the USPTO to achieve the strategic objectives laid out by Under Secretary [David Kappos] and Commerce Secretary Gary Locke â€" a significant reduction in patent pendency periods and the existing patent inventory backlog; improvement in patent quality; enhanced intellectual property (IP) protection and enforcement; global IP policy leadership; and investment in information technology (IT) infrastructure and tools to achieve a 21st Century system that permits end-to-end electronic processing in patents and trademark IT systems.The pendency (in normal English, time that applicants wait for something to happen) last fiscal year was 25.8 months average for a first action on a patent application and a total pendency of 34.6 months. That means over two years before a USPTO examiner does anything and a total of almost three years for the entire process to end. But that last number is a little deceptive, because many patent applicants end up going for a continued examination after being denied a patent. The original application is treated as though abandoned and a new one is started, suggesting that the total pendency per invention, not application, is likely significantly longer. The USPTO was also cagey in discussing the backlog in its annual report for FY 2009:
In 2004, USPTO had a patent backlog of nearly a half million applications and average processing times of 27 months. By 2007, processing times averaged nearly 32 months, with wait times for communications-related patents as long as 43 months. As of September 30, 2008, USPTO reported a backlog of 750,596 applications and estimated that the backlog will exceed 860,000 by September 2011. The 2010 President's Budget reflects a backlog of 740,000 applications by the end of FY 2009, which is a decrease of approximately 10,000 applications over end of FY 2008 numbers.Notice that they don't say what the backlog actually was at the close of last year, so you don't get to see if they met the 740,000 number by the end of last September nor if the goal of actually decreasing the backlog size, rather than just slowing the rate of its growth, is realistic.
The plan is to hire another 1,000 examiners, hopefully from the ranks of former examiners, so getting up to speed could happen faster. But they've been hiring in high numbers for years and experienced people have kept leaving. There's no explanation of why the experienced people who decided to leave would suddenly decide to come back, nor why the hiring levels are suddenly going to make a big dent in the work load when they haven't yet. That's my way of saying not to expect those increased patent fees to end in the near future.