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Amended USPTO funding legislation presented in Congress

Legislation that would allow the USPTO to intoduce an immediate 15% rise in its filing fees and prohibit Congress from diverting money from the office has been introduced into the House of Representatives. The Patent and Trademark Office Funding Stabilization Act of 2010 was tabled on Wednesday by John Conyers Jr, the chairman of the House Judiciary Committee, and Lamar Smith, the committee's ranking Republican. On Monday they had withdrawn proposed legislation bearing the same name after a number of organisations representing IP professionals criticised it because it did not provide for an end to diversion.

Although this new bill is not intended to replace wider-ranging patent reform proposals currently before the Senate, it does deal with a subject that many in the US believe is a major priority. Speaking recently to IAM, for example the soon-to-retire chief judge of the Court of Appeal for the Federal Circuit, Paul Michel, stated: "It seems to me that the USPTO is where 80% to 90% of reform should happen and that the court houses are not on the whole in need of reform."  Damon Matteo, the chief IP officer at PARC and the current chairman of he USPTO's Patent Policy Advisory Committee told the House Judicary Committee in a hearing at the start of May: "If the question is, ‘in the absence of being able to pass the patent bill in aggregate would a stand alone bill vis-a-vis fee diversion be palatable?’ Then the answer is an unequivocal yes.”

At the same hearing, the office's Director David Kappos drew criticism for not backing separate legislation on fee setting and diversion. Although he did not say so directly, it could well be that he was reflecting worries that should funding legislaiton make it through Congress, this will lessen the chances of the Patent Reform Act getting onto the statute books, as lawmakers may feel that there would be less urgency to get something done.

Given that the Conyers/Smith proposals are relatvely uncontroversial, it could well be that they are approved relatively quickly. While that may mean other issues do end up on the backburner, it would also mean that David Kappos would become the first USPTO Director able to make long-term strategic plans in the knowledge that the office can set its fees and keep what it raises. That would be a major step forward and one that all IP professionals in the US and beyond would welcome. 

Joff Wild
IAM Magazine
21 May 2010

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