House Judiciary Committee Chairman John Conyers (D-MI) and Ranking Member Lamar Smith (R-TX) introduced a new bill to provide the PTO with fee-setting authority and to prevent PTO user fee diversion. The text of the bill is available here. A press release concerning the bill is available here.
The bill provides the PTO Director with the authority to set fees by rule, fees that are currently set only by statute. Fees are to be set with the consultation of the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC). The bill indicates that the PTO is supposed to consider a reduction in fees in years where that is feasible.
The bill also establishes a revolving fund into which any fees that the PTO collects in excess of its budgeted amount and expenses are to be deposited. This fund would be available for the PTO to use to cover expenses in other fiscal years when needed. This provision would effectively end fee diversion because all collected fees would be available for PTO use in a later fiscal year if not needed during the year in which they are collected.
Other provisions include the establishment of a micro-entity for new individual filers who would receive a 75% reduction in fees, and the PTO would have the authority to enact a temporary 15% surcharge on fees (presumably until they can get the new fees set by rule?). Curiously, the bill contains a 10-year sunset provision.
What Does This Mean for Patent Reform?
Basically, the House has thrown down the gauntlet on the Senate bill. The House action was foreshadowed in a hearing earlier this month where Judiciary Committee members were not enthusiastic about the Senate’s version of patent reform, but questioned Director Kappos about whether he would accept a bill that merely addressed fee-setting authority and fee diversion. So as not to appear to be giving up on comprehensive reform, Kappos indicated that he was not in favor of such a bill.
The House bill has bipartisan support and would appear to be able to pass the House. The question is whether the Senate would hold it up in order to get S. 515 passed.
Certainly if the House bill were enacted, many members of Congress would feel less desperate to pass comprehensive reform. It would almost defintely signal the end of comprehensive reform in this Congress.
Stay tuned . . .