PTO Considering Significant Increase in RCE Fee

Stephen Nipper of The Invent Blog® and Matt Buchanan of Promote the Progress® are reporting that the PTO is considering another administrative rule change that should be highly popular with the patent bar and inventors.

Both are reporting on a rumor, alluded to during the PTO Roundtable Discussion last week, that the PTO plans a significant increase to the fee for a Request for Continued Examination (RCE).  The current fee of $810 permits applicants to request that the PTO permit another round of examination of an application that has been finally rejected by the examiner.  The Invent Blog® is reporting that the fee may be increased to FOUR TIMES that amount.  The goal, of course, is to discourage such filings.

Applicants who face an examiner who is reluctant to allow an application during the initial round of examination have few other options than to file an RCE.  One option is to file a petition to challenge the finality of the Office Action, while another option is to file a continuing application.  The only other option for the applicant is to appeal the rejection to the Board of Patent Appeals and Interferences (BPAI).

There is no doubt that an increase in the fee to file an RCE would dramatically increase the number of petitions, continuations, and appeals filed.  Every time the PTO screws around with examination rules (limiting continuations, proposing appeal brief rule changes), the number of appeals increases dramatically.  If they keep this up, half of all patent applications will require an appeal to the BPAI before the patent issues.

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2 Responses to “PTO Considering Significant Increase in RCE Fee”

  1. PTO Publishes Rules Agenda for 2009 « Inventive Step Says:

    [...] In these times when the PTO is struggling with reduced filings and reduced revenue, that they certainly won’t be reducing these fees.  This sounds suspiciously like the rumor about a significant raise to the RCE fee. [...]

  2. Looming Crisis at BPAI « Inventive Step Says:

    [...] Although completely unsurprising, the increase in appeal filings is putting the BPAI in an impossible situation.  It wasn’t too many years ago that appeals at the BPAI took 3+ years between the filing of the brief and a decision.  This discouraged the filing of appeals and gave examiners greater power knowing that it was unlikely their decisions would be appealed.  The BPAI did a great job of reducing its backload in recent years by issuing many decisions in less than a year.  Now, however, it appears we are headed back to the days of 3+ years pendency.  Presumably, the number of appeals filed will decline again when this starts to happen. [...]

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