With New USPTO Fees, More is Less?

Imbued with its new fee setting authority after the America Invents Act (AIA), the USPTO has, unsurprisingly, decided to raise its fees.  Taking a page out of the USPS playbook, the PTO is not promising any better or faster service with its increased fees.   In fact, a recent blog post from USPTO Director David Kappos seems to threaten slowing reduction of the patent backlog (currently around 650,000) for those would-be fee complainers.

The PTO has done a commendable job in increasing transparency surrounding its practices, implementing new procedures to reduce pendency, and devoting resources to reducing the backlog of unexamined applications.  In addition, under the AIA patent applicants have the choice of using “Track One,” which for an increased fee, greatly increases the speed of examination and so far, upped the allowance rates.  Yet all of these improvements Kappos mentions were achieved under the current fee schedule.  So what will the more expensive “normal” track applications get, besides a back seat on examiners’ dockets?

Kappos argues that the proposed fee increases are simply the normal course of business, and refuses to speculate on future efficiency gains.  Understandably, the PTO wants to protect itself after bouts with fee diversion, and its strategic vision should hopefully result in efficiency improvements that may be priced in when they materialize.  Still, some critics look at the proposed increases, including a 47% increase for a large entity utility application and a whopping 123% increase for design applications, and conclude the proposed changes threaten to undermine the goals of the AIA.

Are the proposed fees simply a long overdue adjustment needed to improve examination quality and reduce the backlog, or will they price out innovation?  It seems hard to believe anyone in favor of the enacted version of the AIA would expect the PTO to lower fees upon a grant of addition authority.  Thus, perhaps the enhanced menu of options including Track One, micro entity status, and other changes will push innovation forward despite an increased fee schedule.

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