USPTO to get Back its Fee Setting Authority

by Dennis Crouch

The SUCCESS Act (HR 6758) has now passed through both the House and Senate and will very likely be signed into law by President Donald Trump within the next couple of weeks.

The key aspect of the bill is extension of USPTO fee setting authority that ended in September 2018 (7 years after AIA enactment).  Under the new law, USPTO will retain authority to set its own fee structure until September 2026 (15 years from AIA enactment).

Section 10(i)(2) of the Leahy-Smith America Invents Act (Public Law 112–29; 125 Stat. 319; 35 U.S.C. 41 note) is amended by striking “7-year” and inserting “15-year”.

Under the law, the USPTO Director has authority to “set or adjust by rule any fee established, authorized, or charged under [either the Patent Act or the Trade Mark Act] for any services performed by or materials furnished by the Office.”  The one caveat is that the fee structure must be designed “only to recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents (in the case of patent fees) and trademarks (in the case of trademark fees), including administrative costs of the Office with respect to such patent or trademark fees (as the case may be).”

The “SUCCESS Act” portion of the legislation is an acronym for the “Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018” and begins with the following findings:

  1. Patents and other forms of intellectual property are important engines of innovation, invention, and economic growth.
  2. Many innovative small businesses, which create over 20 percent of the total number of new jobs created in the United States each year, depend on patent protections to commercialize new technologies.
  3. Universities and their industry partners also rely on patent protections to transfer innovative new technologies from the laboratory or classroom to commercial use.
  4. Recent studies have shown that there is a significant gap in the number of patents applied for and obtained by women and minorities.

In addition, the legislation includes the following “sense of Congress”:

It is the sense of Congress that the United States has the responsibility to work with the private sector to close the gap in the number of patents applied for and obtained by women and minorities to harness the maximum innovative potential and continue to promote United States leadership in the global economy.

The legislation does not actually do anything but does require the PTO Director along with the SBA Administrator to conduct a study that:

  1. Identifies publicly available data on the number of patents annually applied for and obtained by, and the benefits of increasing the number of patents applied for and obtained by women, minorities, and veterans and small businesses owned by women, minorities, and veterans; and
  2. provides legislative recommendations for how to— (A) promote the participation of women, minorities, and veterans in entrepreneurship activities; and (B) increase the number of women, minorities, and veterans who apply for and obtain patents.

Within 1 year, the PTO Director will provide a report to Congress on the results.

31 thoughts on “USPTO to get Back its Fee Setting Authority

  1. 6

    This could be dangerous. The USPTO may be able to eliminate continuations (like they tried to do 10 years ago) by raising the fee on continuations/RCEs to an outrageous fee. The word “aggregate” in the bill may give the USPTO some wiggle room. I hope folks like David Boundy are paying attention and are ready to go to bat again if the USPTO misbehaves.

    1. 6.1

      “Aggregate” is less a “wiggle room” for the USPTO and more a mechanism for controlling unbridled increases BY the USPTO (any and all such increases need to zero out in a final budget package.

      Of course (and as I have long noted), the strict scrutiny of those very details of those “in the aggregate” calculations are what is needed to be maintained (hello OMB).

  2. 5

    link to digbysblog.blogspot.com

    Entry points to the far-right include male-dominated video-game culture, the anti-feminist gamergate, tr 0ll havens on 4chan and 8chan, and the conspiracism that flourishes on websites like Infowars. Libertarianism is another gateway.

    A lot of these young guys,” Neiwert says, “especially from the software world, who are being sucked into white nationalism, start out being worked up about Ayn Rand in high school.”…

    They eagerly talk politics, but evidence of their America is scant beyond the internet. Institutional racism has been ended by affirmative action, “black privilege,” and equal protection under the law. Any remaining black inequality is caused by social welfare and liberal policies. In any case, it was Democrats who started the Klan.

    Just sayin’. The “intellectual” (LOL) relationship between the glibs/Repu k k ke types and the patent maximalists is not a coincidence, nor is the constant projection, the path 0 l0 gical ly ing, and the rhetorical g@ rb@ge that they spew out in defense of their cr@ ppy ideas.

    1. 5.1

      As to spewing g@ rb@ge, NO ONE does that more than you, Malcolm.

      You are the Trump of these boards (your number one meme of Accuse Others simply f001s no one).

      1. 5.1.1

        your number one meme of Accuse Others

        Not so much “accusing” as simply pointing out the facts.

        My favorite article, recently, is this one by Big Jeans, entitled “Why is a Rich F@ t White Rep u k k e Trying to Make It Easier to Get Junk Patents?”

        It’s really deep, serious stuff and totally not an example of exactly what I’m talking about.

        link to ipwatchdog.com

        Of course, if the glibs/Rep u k k ke types wern’t spending so much time catering to r@ cist @ h0les and their (LOL) “economic” (LOLOLOL) “anxieties”, then the conversation would be different.

        But those are just the facts, Billy.

        Own it.

        1. 5.1.1.1

          White…?

          Yet again, you seek to insert race. You are aware of what that makes you, right?

          Not so much “accusing” as simply pointing out the facts.

          Your rants miss the point.

          The “Accuse Others” meme stands for: Accuse Others Of That Which Malcolm Does (or Is).

          Of course, you already know that, so the only thing you are attempting to do is kick up dust.

          As typical.

          1. 5.1.1.1.1

            Are you as st00 pit as you sound?

            Seems impossible.

            White. White. White.

            White. White. White. White.

            White. White.

            Just walking through the Presidents here. I’ll do the PTO directors next. Gender too!

            Got a problem with it?

            1. 5.1.1.1.1.1

              Got a problem with your obvious 0bsess10n and attempts to inject race as some type of issue where it is not an issue.

              Most all rational people will have this same issue.

              That you seem unable to grasp this as an issue is very much part of YOUR problem.

    2. 5.2

      I love this leftist blog MM reads, it’s so hilarious. Lets throw out all the video of the “proud boys” being attacked before they beat down antifa’s street thugs! Also, Fox is framing antifa! Nevermind all the rest of that footage! There’s non whites at the meeting I want to call “white supremacist”, this does not compute! Just on and on and on. Leftism leftism leftism.

  3. 3

    “It is the sense of Congress that the United States has the responsibility to work with the private sector to close the gap in the number of patents applied for and obtained by women and minorities to harness the maximum innovative potential and continue to promote United States leadership in the global economy.”

    “provides legislative recommendations for how to— (A) promote the participation of women, minorities, and veterans in entrepreneurship activities; and (B) increase the number of women, minorities, and veterans who apply for and obtain patents.”

    Sounds like oppression to me.

      1. 3.1.1

        Upon consideration I’m not sure if I can add it to my list of titles, they do get some privilege.

        Although I might have to adopt MAGA6chan as my name for awhile because I actually like it.

    1. 3.2

      Not seeing the oppression.

      Are you thinking that the actions FOR any particular ISMs must come at the expense of others? I am not sure I would view it as such a zero sum game.

      1. 3.2.1

        Absolutely not. These ebil wyte cis-genderborn heterosexytimed christin’n capitalismo patriachish types of congressional critters are transparently trying to:

        1. Obtain the secrit innovatin’s of whamen and minorities, which they’re obviously keeping as trade secrits currently.

        2. Allow ebil white cis hetero christian capitalist patriarchial OWNED capitalistic corporations to then appropriate said innovatin’s at their leisure once they are made public (or at the least benefit from them while not appropriately paying the innovator at bare min) to thus profit therefrom.

        3. Drag even more innovatin’ than our noble classes are already producing out of them with gimmicks like these feel good programs to fuel their ebil white supremastic gubmit and capitalistic system.

        And that’s just the objectionable oppressions being attempted that are available on cursory review. I’m sure I could find more if I looked deeper.

        #resistcomrade

        The best part about the above is I didn’t even have to make any of it up, it just flows like water from leftist victim theory once you know it and I likely could have a paper about this published in their finest journals. And the even better part is, that my findings would probably irl be actually correct (from a certain point of view).

        link to youtube.com

  4. 2

    Under the law, the USPTO Director has authority to “set or adjust by rule any fee established, authorized, or charged under [either the Patent Act or the Trade Mark Act] for any services performed by or materials furnished by the Office.” The one caveat is that the fee structure must be designed “only to recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents (in the case of patent fees) and trademarks (in the case of trademark fees), including administrative costs of the Office with respect to such patent or trademark fees (as the case may be).”

    Wasn’t there also some other derpshert “caveat” about the PTO needing to eliminate one rule for every new rule?

    In any event, Iancu is an incompetent h@ ck. But somehow I suspect he’s good at manipulating numbers, especially it helps enrich himself and his Rep u k k ke buddies.

    1. 2.1

      Get a grip on your non-patent law political rants.

      1. 2.1.1

        Get a grip on your non-patent law political rants.

        Ha ha ha ha.

        Roaches don’t like to be exposed to the light. Hurry back under your rock, “anon”, with your glibertarian patent maximalist friends. You’re totally not hypocrites! Nobody can see right through you as far as you know.

        LOL

        1. 2.1.1.1

          It is clearly not a case of “sunlight,” as much as it is that you should respect the forum (the rest of your reply is gibberish).

          This is simply not the proper forum for your rants.

          Just how many expungements do you need to realize that?

          Get a Fn clue

          1. 2.1.1.1.1

            how many expungements do you need

            It wouldn’t be fun if I told you my secret number.

            1. 2.1.1.1.1.1

              I love the fact that you think somehow your not following the norms and having more expungements than all other posters combined is somehow something to be amused by.

              It is so very Trump of you.

              1. 2.1.1.1.1.1.1

                not following the norms

                Remember, folks: this is the guy who can’t tell the difference between the two political parties.

                1. 1) your ad hominem is (again) inaccurate

                  2) your reply is completely meaningless to the point at hand.

                2. The idea that you care about “norms” is so absurd that I literally have to have a drink to even write about it (okay, not really — it’s Friday so that’s why I am pouring myself a tall one). You spent years here spewing utter nonsense under a zillion s0ckpuppets trying to derail any discussion of Prometheus v. Mayo. Now you’re mewling about “norms”?

                  My goodness you’re outdoing yourself in the hypocrisy department today.

                  The fact remains that all of this horseshirt about “civility” is just that. Show some “civility” yourself and stop spewing in@ne v@pid aphorisms that mean absolutely nothing (your “ends means” g@rbage and your “broken scoreboard” g@r b@ge). Respond to the arguments that are put before you, you silly crybaby. Because even I am somehow “removed” from the discussion (never going to happen), the arguments aren’t going anywhere. Ever.

                  And along with that, quit crying about me “politicizing” stuff. The law is written by politicians and interpreted by political appointees. We live in a very strange time where the disenfranchisement of the majority by a wealthy and almost entirely white minority is accelerating at a dangerous rate. I’m not going to stop pointing this out. It’s absolutely relevant to patent law, especially when the same people are right out in the open trying to turn the patent system into a chaotic free-for-all that only they will benefit from.

                  Maybe Dennis doesn’t want to talk about that aspect of patent law for some reason or the other. Doesn’t mean that it’s not real. It’s very real.

                3. trying to derail any discussion of Prometheus v. Mayo.

                  Absolutely false – there was NO derailing from me. Trying to get you to be on point or to address any number of different counterpoints cannot be considered derailing. Tr@ sh1ng your propaganda is not — and can never be — considered to be derailing.

                  As to “The fact remains that all of this horseshirt about “civility” is just that. Show some “civility” yourself and stop spewing in@ne v@pid aphorisms that mean absolutely nothing,” You are wrong on multiple fronts.

                  You confuse “civility with staying in topic, or making any ad hominem to be on target ad hominem. I have distinguished this previously many times now; and am on record against any type of “fake” civility. My points have never been about civility per se, given as I have the Quote about sharp words being an assault on the unthinking (and how that is good).

                  As for the aphorisms, you are deeply, deeply, deeply in the weeds. The aphorisms have ZERO to do with civility, so your “call for civility” cannot reach them.

                  No, you don’t like them because they are very much clear English, very much short, to the point and memorable, and most of us, because they are accurate, and leave you with no comeback. They cut right throw your C R P and you cannot think of anything to say in return (leastwise anything that makes you appear even remotely intelligent). You confuse the feelings the accurate aphorisms create with my being “uncivil.” That’s a YOU problem, not an uncivil problem.

                  As to “Respond to the arguments that are put before you, you silly crybaby.” — a double down of the Accuse Others meme, given as I more than anyone else engage on the merits of arguments and you more than anyone else remains the site’s biggest crybaby.

                  Finally, it is not you — per se — that I seek “to remove,” it is your nigh endless blight. Stop your blight and actually engage in the merits in an inte11ectually honest manner, and you will see zero calls for removing your blight.

                  As you may recall, this is the exact same offfer I put to you some 6 years ago now.

                  That offer is still on the table for you to accept.

                  Thing is, you have shown ZERO amount of self control from your blighting tendencies.

      2. 2.1.2

        I assume you noticed, “anon”, that in one of the other threads, one of your bffs was advocating for the removal of the utility requirement … from utility patent law.

        It’s almost beyond par0dy except we know that when it comes to the maximalists, nothing goes too far or too deep into the murky swamp of fever dreams.

        I mean, hey, let’s get rid of the requirement for “new” and “non-obvious” too! Finally the maximalist dreams will come true and everybody can have a patent! What a wonderful world that will be. Why, I’ve got a few hundred correlations ready for patenting right now, all designed to turn you into an infringer. How awesome is that?

        1. 2.1.2.1

          in one of the other threads, one of your bffs was advocating for the removal of the utility requirement … from utility patent law.

          1) Please stop your one-bucketing.
          2) I commented directly on that thread.

          Get a grip.

  5. 1

    A study! Hey, how’s that Effect-of-First-to-File-on-Small-Businesses study that Congress ordered the SBA and PTO to report on within one year of the enactment of the AIA in section 3(l) of P.L. 112–29 coming along?

    1. 1.1

      Wow – I was thinking of the exact same thing.

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