I previously reported that the Senate was considering a bill to permit the patent side of the PTO to “borrow” money from the trademark side.
Yesterday, the US House of Representatives passed H.R. 3114, which permits the PTO to use up to $70 million in surplus funds from trademark operations to fund the patent side. The authority of the PTO Director to use these funds lasts until June 30, 2011, and the funds must be repaid to the trademark side by September 30, 2014. To aid the patent side of the operations in repaying the “loan,” the Director may establish a surcharge on patent fees.
This bill was passed to help the PTO avoid patent examiner furloughs and lay-offs. If filings continue to decrease, however, it is doubtful that this will be sufficient to sustain patent operations into FY2010.
The other problem is that trademark filings are also way down, with some reports indicating that filings are 10-20% less than for the previous fiscal year. This means that the trademark side’s well-managed surplus is now being raided for use by the patent side. This could potentially put the trademark examining attorneys at risk for furloughs and lay-offs. Which side should bear the risk?
I understand that the money has to come from somewhere, but the PTO’s budget crisis is a result of a significant decrease in filings. Much of this is the result of the economy, but it is also a result of the PTO’s anti-patent stance with reduced allowance rates and numerous new proposed or implemented rules that make life more difficult for applicants. An increase in the cost of applying for a patent in the form of a surcharge is not going to increase filings by already cash-strapped companies.
