Meanwhile, the patent office is either conspiring with Congress to swindle us out of even more money, or at the very least thinks that we’re all incredibly stupid. More on that after the break.
First, Sen. Coburn’s comments are nicely summarized by PatentDocs:
Senator Coburn asserted that there was a “contract with America” that patent fees were collected to pay for patent examination, and that “if an American pays a fee he should get what he pays for” and not for funding other aspects or parts of the government.
The Senator has it exactly right, and this should hardly be controversial. Consider the “problem” of large increases in the number of patent applications. When fees collected by the patent office are diverted from the agency, their budget remains more or less flat, while more work is coming through the door. In every other business, more customers means more revenue, allowing employers to higher more staff and invest in improved infrastructure to handle the new workload. Fee diversion prohibits this and essentially turns the patent office into a profit center for the US government.
The graphic to the right, found at this older PatentlyO post, represents the increase in patent applications filed between 1995 and 2009. Congress essentially created the backlog by stripping the patent office’s ability to adjust its staffing and practices to accommodate the rising application rate. Of course the patent office has a solution to end the backlog, but unless fee diversion ends, it won’t accomplish a damn thing.
Nicely summarized at TacticalIP, the patent office hopes to convince us that its “three track” proposal will fix the backlog once and for all. The plan is really quite simple. Most applications will fit into “track two” which is basically examination in the normal queue as it exists today at the patent office. Track three offers the ability to voluntarily delay examination for up to 2 and a half years.
But the mischievous “track one” is where the fallacy is exposed. For an additional $4800,* the patent office will put your application into the “express lane” which carries a goal of a first office action (a decision on whether your claims are patentable, unpatentable and the reasons why) within four months, and final disposition within a year.
Naturally, this would come at the expense of “track two” applications, pushing the delay for those who can’t afford the additional fee. And if it is wildly successful (an influx of “track one” applications), how could the patent office meet these time commitments without hiring more staff? And it can’t use the excess fees to hire more staff unless Congress agrees to stop diverting funds into the
black hole general fund!
Unless Congress ends fee diversion, the backlog will perpetuate, Examiners will have less time to devote to each application. Less time equates to inconsistent results, where applications are granted, or not based on relatively arbitrary reasons. Meritorious applications could be erroneously held up, while undeserving applications are inexplicably granted. Sure, they might make the right decision some, or even most of the time … but there’s no guarantee.
This may be the reason why the Innovation Alliance is reserving judgment on S.23:
“Key to USPTO’s efforts to tackle the backlog is a change in the law to prohibit any further diversion of USPTO fees to other uses. We wholeheartedly support Senator Coburn’s efforts in this regard and will work hard to pass his fee diversion amendment into law. Ending fee diversion is an issue that unites virtually all stakeholders on all sides of the patent debate.
Former Chief Judge Paul Michel and current President of International Federation of Professional and Technical Engineers Gregory Junemann have sent a letter to the Senate pointing out that the current legislation will only increase the backlog.
And just to it top off, the hypocrisy of the so-called Coalition for Patent Fairness comes out in earnest as they refer to S.23 as “a step in the right direction,” despite its obvious ill effects on the backlog. Notably, fee diversion is nowhere to be found in their list of proposed reforms.
*Under the current plan, everyone would pay $4000, regardless of status. If the patent office gets cooperation from Congress, they plan to charge $4800 to large entities and $2000 to small entities and individuals.
The rent is too damn high!
- Coburn Amendment: End to Fee Diversion in Senate Bill (ipwatchdog.com)
- USPTO Issues Press Release to Propose Three Patent Processing Tracks (tacticalip.com)
- Lies And Ignorance Underlying The Patent Reform Act (gametimeip.com)