MoneyWatch Tech

Higher Fees and Other Notes on the Patent Front

By Erik Sherman

Updated on: September 17, 2009 / 5:08 PM EDT / MoneyWatch

USPTO director David Kappos gave a talk earlier this week, and it gives some hints as to what companies might expect on the patent front:

A new task force is looking at the decades-old "count" system that drove productivity goals for examiners. It's been one of the big complaints by many that the count system forced examiners to turn down patents to keep pace with their productivity goals, which affected their status in the organization and the amount they were paid. Denials turned into additional filings that increased time and expense for companies filing patents. This is a big task and not one that will happen likely turn into quick changes.
The PTO is examining how to improve patent quality. In the recent past, that was code for "finding reasons to say no." But, as Kappos said, "I won't stand up here charts and tell you how perfect our quality is. I know that quality is not where it should be, even if the agency's past quality standards indicated otherwise." That, I think is a tacit acknowledgement of the ongoing claims that the USPTO had been manipulating operational statistics to make it seem as though it were accomplishing what it set out to do, even as the delay to review patent applications grew.
Another criticism was that people couldn't get full access to USPTO data, which, combined with the previous point, left some wondering what the agency was trying to hide. Kappos mentioned that they want to provide additional access. Allow me to suggest a search mechanism for filed papers that actually works reliably.
Kappos is pushing for patent reform on Capitol Hill, though that's no change. The question is how it might fit into bigger issues facing legislators. It's a topic that has been pushed off for years.
The most practical issue for companies: expect higher filing fees. "Because of the downturn in patent application filings, issuances and maintenance fee payments, the USPTO faces a $200M shortfall in fiscal year 2010," Kappos said. "This serious situation puts into question the agency's ability to address its mission at any acceptable level."

That last point is going to be a sticky one, I suspect, given some of the aggressive goals he's articulating, including reducing so-called first action pendency (time for the preliminary decision on a patent, absent any of the back and forth that typically ensues) to 10 months, or under a third of the current level. Combine that with adding major IT improvements and you're looking something that is probably going to take a whole lot of money. And for those who may be forgetting, the USPTO is self-funding out of fees. So I'd expect the potential of heft hikes in what it costs to obtain and maintain a patent.