If Fee Diversion Continues, Kill the Bill

David Boundy is reporting on Patent Docs that House Republican leaders have reached an agreement to remove the provisions of H.R. 1249 that would prohibit Congress from stealing PTO funds.  If this is true, the bill must be defeated.

As noted previously, the America Invents Act has numerous problems such as prior user rights and the near removal of the grace period. 

The best part of the bill, the one that IP professionals have been fighting for for over a decade was the end of fee diversion, Congress’ continued theft of PTO user funds.  The PTO is completely funded by user fees; it does not operate with tax money.  Those fees should be set at a level that permits the PTO to conduct thorough and expeditious examination of all applications that are filed, as well as all reexamination and similar proceedings.  The PTO is also in serious need of replacing its ancient IT infrastructure.  Because patent examination takes more than one year, the PTO also needs the ability to budget for more than one year at a time.  In an era where Congress cannot even pass a budget for a single fiscal year, the PTO cannot operate in this manner.  It requires fee-setting and retaining autonomy.  Congress’ near $1 billion theft from the PTO over the years is a lot of what got us into the current mess at the PTO.  Simply permitting the PTO to be adequately funded, apart from other reforms, would go a long ways towards fixing any problems with the patent system.

Other Provisions

Section 18 of the bill is a special transition program for challenging business method patents.  The section defines “business method patents” as

a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.

OK, so what’s a “technological invention”?  The bill does not define that term, but instead leaves it to the PTO to “issue regulations for determining whether a patent is a technological invention.”  The Federal Circuit earlier ruled that the PTO does not have general substantive rule-making authority.  Does this section of the bill grant the PTO such authority, or would such rules be merely procedural in nature?

More troubling, however, is the question of whether the patent law going to turn into the tax code where each industry or lobby gets its own provisions and special procedures and defenses.

The word is that the bill could come to the floor of the House for a vote as soon as Wednesday.  It’s getting to be crunch time for patent reform.

About these ads

11 Responses to “If Fee Diversion Continues, Kill the Bill”

  1. Cee Says:

    Congress continues to TAKE money that was “paid” for the review and filing of a patent. AGAIN, Congress is the one that does not get it and this is why we are in debt as a country. “CONGRESS for years has had programs that “we” could not afford as a country. They think money is free for the taking. They take from everywhere they can get their hands on money and replace it with IOUs. If their is no money they borrow from another country and heap more debt upon us. As a country we are in the negative and they have the nerve to state that the USPTO cannot have “their” funds because the American people want transparency and accountability (must be an election year). CONGRESS ALONE has run this once great country in the ground because of their frugal spending. Congress is crippling our economy and because of their unchecked spending, our country is in an uproar, and the federal worker is now the “target” of congress themselves for their “paycheck” is now too much.
    Does anyone else see through the “bull”?

  2. General Global Week in Review 27 June 2011 from IP Think Tank Says:

    […] Is the end of fee diversion dead in the Leahy-Smith America Invents Act? (Patent Docs) (America-Israel Patent Law) (Inventive Step) […]

  3. Patent Reform Notes « INVENTIVE STEP Says:

    […] The bill is littered with problems, but the number one problem is that, unlike the Senate bill, it does not guarantee an end to fee diversion.  Therefore, without permitting the PTO to keep all of its collected fees, adding additional […]

  4. All Eyes on Senate as it Votes on Patent Reform « INVENTIVE STEP Says:

    […] issues.  The House bill differs from the Senate version in that it does not end the practice of PTO fee diversion by Congress and it adds several other provisions such as the defense of prior user […]

  5. PTO Numbers at End of FY2011 « INVENTIVE STEP Says:

    […] truly fix these issues, Congress must end fee diversion permanently and permit the PTO to be fully funded so that it can be fully staffed to meet users’ needs.  […]

  6. PTO Numbers – January 2012 « INVENTIVE STEP Says:

    […] truly fix these issues, Congress must end fee diversion permanently and permit the PTO to be fully funded so that it can be fully staffed to meet users’ needs.  […]

  7. PTO Numbers – June 2012 « INVENTIVE STEP Says:

    […] truly fix these issues, Congress must end fee diversion permanently and permit the PTO to be fully funded so that it can be fully staffed to meet users’ needs.  The […]

  8. PTO Numbers – End of FY2012 « INVENTIVE STEP Says:

    […] truly fix these issues, Congress must end fee diversion permanently and permit the PTO to be fully funded so that it can be fully staffed to meet users’ needs.  The […]

  9. PTO Budget Problems | INVENTIVE STEP Says:

    […] I thought the America Invents Act was supposed to fix all of the PTO’s budget problems and issues of the past.  The PTO was granted rule-making authority to set its own fees so as not to be at the whim of Congress.  And Congress PROMISED this time that it would no longer divert PTO funds.  Of course, this promise came at the same time that the prohibition against the practice was stripped from the bill. […]

  10. PTO Should be Exempt From Sequestration | INVENTIVE STEP Says:

    […] will we learn?  The removal of the specific language to end fee diversion from the AIA should have been a strong signal that this would happen.  ”Trust me” does […]

  11. Bill Introduced to End Fee Diversion | INVENTIVE STEP Says:

    […] diversion was a big part of the debate over the America Invents Act, but ultimately the provisions to end that practice were removed prior to final passage.  Indeed, […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


Follow

Get every new post delivered to your Inbox.

Join 63 other followers

%d bloggers like this: