INVENTIVE STEP

As I alluded to last week, the PTO is again facing a budget crisis.  Acting PTO Director Teresa Stanek Rea told employees last week that “immediate and significant” budget cuts were coming due to lower-than-expected fee revenue and the congressionally mandated budget cuts from the sequester.

Hiring, travel, training, and information technology modernization will be the focus of initial cuts, but it seems likely that significant cuts will be required across the board.  The agency will attempt to minimize impact on users, but that can only go so far.

Director Rea noted that fee revenue is “substantially below” PTO expectations set for in its FY2013 budget.  Sequestration cuts have been mandated at about 5% of PTO revenue or $148 million.  Since the PTO is a fee-based agency that is self-funded that shouldn’t be a problem, right?  They simply will take in less revenue and therefore have less to spend.

Unfortunately, it appears the agency is getting hit by a double whammy.  Not only is revenue down, but Congress is again instituting fee diversion.  The 5% cut will apparently come from fees the PTO has collected.  These will be shunted to other agencies within the Federal government.

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.

What did we think would happen?  Did we really think Congress would keep its word on fee diversion?  Seriously?

Patently-O and IPWatchdog have written about this issue as well.

We have now reached the half-way point of FY2013.  It’s time to review PTO numbers again.

The following is a comparison of the PTO’s numbers from March 2013 with the end of FY2012 (at my last numbers update).  Time to refer again to the PTO’s Data Visualization Center to see how things are going.

First Action Pendency – 19.2 Months

At the end of FY2012, first action pendency was 21.9 months.  That number is a significant improvement.  That’s a 12% drop in the first six months of the year.

“Traditional” Total Pendency – 31.1 Months

Traditional pendency is down from 32.4 months in September.  The 4% reduction continues to demonstrate progress in this area.

Application Pendency with RCEs – 38 Months

This represents a 3.5% reduction since September and a drop of 1.4 months.  This is progress, but the increasing number of RCE filings (and appeals) makes this number look better than it actually is.

Applications Awaiting First Office Action – 607,482

This number is virtually unchanged during FY2013, down from 608,283.  The PTO had this number down to 593,339 at the end of February.  The huge spike in new filings to beat the first-to-file transition, however, brought the number back up.

Patent Application Allowance Rate – 51.1%, 68.8%

The first number counts RCE filings as abandonments, while the second number does not, but counts them as continuing prosecution.  These numbers are only slightly changed from 51.4% and 68.2%, respectively, in September.  The nearly 17% difference between the two numbers is, however, troubling.  Especially considering the next number.

RCE Backlog – 111,274

At the end of FY2012, the PTO reported 95,200 applications with RCE filings that awaited action; at the end of FY2011 that number had crept up to 63,487.  That represents a 17% increase during FY2013 and a 75% increase over the last two years.  Not good . . .  Rather than apportioning blame, perhaps trying to find a solution is the best answer.

Number of Patent Examiners – 7,842

This number is unchanged from 7,837 in September.  The PTO is facing another budget crisis due to sequestration.  This number will probably fall.

Pendency from Application Filing to Board Decision - 87.9 Months

The crisis at the Board continues to get worse and shows no signs of abating.   This number continues to climb–from 85.9 months in September.  New technologies become obsolete prior to getting a patent or decision by the Board.  The PTO hired a number of additional patent judges and attorneys to deal with this issue, but the sharp increase in the number of appeals filed has made tackling this an impossibility.   The Board now has significantly greater responsibilities with the beginning of the new post-grant review proceedings.

At the end of February, the Board had 26,459 pending appeals from ex parte application prosecution, a number virtually unchanged during FY2013.  4,695 new appeals were filed since September (a pace for 11,268), which is on pace for a 9.4% reduction from FY2012.  Meanwhile, the Board disposed of 4,720 cases during FY2013 (a pace for 11,328), an increase of 14% from FY2012!

In other types of cases, 152 inter partes review cases have been filed, 14 trials instituted and 3 concluded.  15 transitional business method cases were filed with 5 trials instituted.  10 new interferences were declared, with 26 concluded, leaving the Board with 37 still to be decided.  46 new ex parte reexamination cases were filed, with 41 being disposed.  27 such cases remain pending.  82 inter partes reexaminations have been filed.  The Board has decided 67, leaving an inventory of 79 cases pending.

Conclusion

The PTO is doing a good job on the front end.  Significant progress is being made on first office action pendency.  The problems begin, however, once an application reaches a final office action.  RCE filings are skyrocketing.  Many or most of these are the result of examiners forcing them on applicants.  This is very inefficient and increases application cost and pendency significantly.

The PTO must come up with a plan to deal with its crisis at the Board.  Applicants deserve the ability to get a final agency decision on a patent application within a reasonable time frame.  The PTO is working hard to try to hire more judges and patent attorneys to work on this situation, but Congress added to its workload as well.

To exacerbate these issues, fee diversion appears to be back.  Even though the PTO is funded by user fees, it is being required to cut funding and transfer fees to other agencies.  This is not permissible and must end.  More details are available here and here.

Today, the PTO is publishing Final Rules and Examination Guidelines for the implementation of the first-to-file provisions of the AIA that take effect March 16, 2013.  These documents are extremely lengthy and detailed.

The most important provisions to remember are that the new rules apply to all applications filed after the March 16, 2013 effective date, unless the application claims the benefit of an earlier filed application (foreign, international, provisional, or non-provisional) and all claims of the later-filed application are fully supported by the earlier filed application.

In the case where the later-filed application claims the benefit of an earlier-filed application, but includes at least one claim that is not fully supported by an earlier application, the rules require the applicant to provide a statement to that effect.  This rule applies if the application contains such an unsupported claim at any time.  It does not matter if the claim is later cancelled.  The rules also contain strict time frames for applicants to file such a statement.  ”This procedure will permit the Office to readily determine whether the nonprovisional application is subject to the changes to 35 U.S.C. 102 and 103 in the AIA.”

Thus, the burden is squarely on the applicant to be certain that the application is to be governed by the first-to-invent rules rather than the first-to-file rules.

Several suggestions for avoiding any questions as to whether the application will be governed by the old rules or the new rules are listed below.

1. File any possible application before the March 16 deadline.  This includes any foreign application or international application where the deadline may be several months away, as well as any provisional applications that may not expire for several months, and even continuation, divisional, or continuation-in-part applications that are being contemplated prior to that date.
2. After March 16, if you plan to file an application that will include some claims that are supported by an earlier application and some that are not, segregate the claims into separate applications.  At least the entire application will not be “contaminated” by the claims that are not supported.
3. Consider this issue carefully when preparing new applications or when adding new claims to pending applications.

First-to-invent rules are clearly more applicant friendly; applicants should seek to remain under those rules for as long as possible.  The transition period will be one of confusion as to which rules should apply during prosecution and litigation.  Planning ahead can only help avoid the confusion.

Patent Docs includes a good analysis of the rules and PTO responses to comments.

In December, the PTO requested comments on RCE practice.  Specifically, the PTO asked for comments on 11 questions.  The Institute for Electrical and Electronics Engineers (IEEE) submitted a detailed response that includes a proposal to reduce the number of RCE filings.

A large portion of the comments relate to proposed changes to the PTO’s “count” practice of rewarding examiners for piecemeal production.  Instead, the PTO should provide incentives to examiners to bring examination to a conclusion.  The practice of “churning” RCEs has become quite common under the PTO’s current incentive model.

The PTO should continue efforts to ensure that examination is complete at the earliest stages of prosecution and provide incentives for second non-final office actions when warranted.  Under current practice, the PTO is strongly discouraging second non-final office actions.  This causes examiners to prematurely issue final office actions at times when they are not warranted.

The PTO charges applicants a higher fee when the application includes a greater number of claims, as well as a longer application with a greater number of pages.  The PTO should similarly provide examiners with greater incentives when they examine applications of greater complexity.  Under the current system, examiners receive similar credits whether they examine simpler applications or more complex applications.

The PTO should provide greater transparency in the process.  Examiners should be required to address each claim limitation in detail when writing rejections and should be required to address every argument submitted by the applicant.  Perfunctory rejection explanations and simply indicating that the applicants arguments “were not persuasive” does not meet this standard.  This would provide an earlier meeting of the minds between applicants and examiners to more efficiently conclude the examination process.  Similarly, the PTO should require participants in Pre-Appeal conferences to provide written explanations for rejections submitted to the Board of Appeals.

Examiners should suggest amendments and point to potentially allowable subject matter during prosecution.  This would also increase examination efficiency.

A summary of the specific IEEE suggestions include:

o IEEE-USA believes that the PTO’s “count” and “production unit” metrics and compensation systems are counterproductive, as we discuss in Attachment A, § 2.2 starting at page 18.

o RCEs would decline if the examiner “count” system were modified to reward examiners for concluding examination, not extending it, as we discuss in § 2.3 starting at page 19.

o RCEs would decline if examiner counts were scaled with application complexity, as we discuss in § 2.4 starting at page 19.

o RCEs would decline if supervisor compensation metrics were recalibrated to incentivize efficiently concluding examination, as we discuss in § 2.5 starting at page 21.

o RCEs would fall if the 2009 redocketing of RCEs were rescinded, as we discuss in § 2.6 starting at page 21.

 37 C.F.R. § 1.104(c) should be revised to state an unambiguous requirement that an examiner must provide a clear written explanation for every material issue, including limitation-by-limitation consideration of claim language (see § 3.1 at page 24).

 The PTO should improve compliance and enforcement of 37 C.F.R. § 1.104(c)(2), requiring precise disclosure of the examiner’s analysis of references (see § 3.2 at page 29).

 The duty to “answer all material traversed” is a near-absolute obligation set by the Administrative Procedure Act, 5 U.S.C. § 555(b), not a “should” recommended practice—MPEP § 707.07(f) should be revised to clarify that duty, and that no Action may be made final if there is any failure to answer an applicant’s argument (see § 3.3 at page 29).

 The PTO should set clear and enforceable standards for completeness required for final rejection and to survive Pre-Appeal. Any omission in a purportedly-final action (omission of claim language, omission of an element of a required legal showing, etc.) should prevent final rejection, and should result in per se grant of reopen on Pre-Appeal (see § 3.4 at page 30, and Attachment C).

 RCEs would be reduced if Pre-Appeal conferees were required to provide a written explanation of all grounds referred to the Board, not a single all-or-nothing “X” (see § 3.5 starting at page 32).

 The PTO should add a fair restatement of the Federal Circuit’s definition of “new ground of rejection” to the MPEP, and enforce standards for premature final rejection (see § 3.6 at page 32 and Attachment D).

 RCE’s would be reduced if the petitions process were a reliable way to seek enforcement of the PTO’s regulations governing its own conduct. The petitions process is not reliable. One source of that unreliability would be removed if the PTO included a written statement of the scope of petitionable subject matter jurisdiction, as we recommend in § 3.7 at page 38, and in Attachment E).

 The PTO should reiterate to its employees that obligations of PTO employees stated in the MPEP are binding on and enforceable against examiners, and waiver requires formal clearance—there are no on-the-fly exceptions (see § 3.8.1 at page 39).

 RCEs would be reduced if the rejection form paragraphs were updated to provide more “handholding” (see § 3.9 starting at page 46).

 MPEP § 2144.03(C) creates unwarranted RCE’s and delay by misstating the law of intraagency Official Notice—Official Notice is adequately traversed by simply “calling for” substantial evidence under 37 C.F.R. § 1.104(d)(2) (see § 3.10 at page 46).

 37 C.F.R. § 1.111(a)(2) should be returned to its pre-2004 state, allowing supplementary amendments until they would “unduly interfere” with examination (see § 3.11 at page 49).

 MPEP §§ 2106(II)(C) and 2111.04 should be corrected to accurately state the law and give ascertainable standards for certain “questionable” claim language (see § 3.12 at page 51).

 RCEs would be reduced if the PTO published its internal examination memoranda (see § 3.14 starting at page 54).

 The PTO should improve supervisory enforcement of existing guidance and regulations (see § 4 starting at page 55).

 The PTO should implement the Good Guidance Bulletin issued by the Executive Office of the President in 2007 (see § 5 starting at page 57). IEEE-USA has brought this directive to the PTO’s attention on several occasions—IEEE-USA is surprised at the PTO’s continued failure to implement a directive issued on the authority of the President, especially when the Bulletin sets procedures and policies that would advance the goals the PTO professes to seek.

 RCE’s would be reduced if the “in process review” metric were improved and made more transparent (see § 6 starting at page 58).

Tomorrow, the PTO will be publishing the Fee Schedule in the Federal Register.  The new schedule should take place by mid-March.

The original proposal was published for comment in September.  The final rules are quite similar to the proposal.  The current fees and new fees are listed below for many common fees.  The fees are listed as large entity, small entity, micro entity.

The PTO will also publish new fees for post grant and other patent reviews.

The new rule also raises other fees by smaller amounts, such as requests for extension of time.  The PTO plans to eliminate the current $40 assignment recordation fee for assignments recorded electronically.  Finally, the PTO will also institute a registration fee for attorneys and agents.  The fee for active practitioners will be $120 per year; inactive status will cost $25 per year.

Last week, the PTO published a notice in the Federal Register requesting comments on Request for Continued Examination (RCE) practice.

The notice indicates that the PTO has a backlog of 90,000 patent applications that have not been examined since the filing of an RCE.  The notice propounds 11 questions for which it solicits comments:

(1) If within your practice you file a higher or lower number of RCEs for certain clients or areas of technology as compared to others, what factor(s) can you identify for the difference in filings?

(2) What change(s), if any, in Office procedure(s) or regulation(s) would reduce your need to file RCEs?

(3) What effect(s), if any, does the Office’s interview practice have on your decision to file an RCE?

(4) If, on average, interviews with examiners lead you to file fewer RCEs, at what point during prosecution do interviews most regularly produce this effect?

(5) What actions could be taken by either the Office or applicants to reduce the need to file evidence (not including an IDS) after a final rejection?

(6) When considering how to respond to a final rejection, what factor(s) cause you to favor the filing of an RCE?

(7) When considering how to respond to a final rejection, what factor(s) cause you to favor the filing of an amendment after final (37 CFR 1.116)?

(8) Was your after final practice impacted by the Office’s change to the order of examination of RCEs in November 2009? If so, how?

(9) How does client preference drive your decision to file an RCE or other response after final?

(10) What strategy/strategies do you employ to avoid RCEs?

(11) Do you have other reasons for filing an RCE that you would like to share?

I applaud the PTO for taking the initiative to ask its constituents for input on RCEs rather than simply instituting new rules that may be ineffective.  I’m just not sure the issue is as large as the PTO perceives it to be.  If examiners would do more complete first examinations, and more importantly, consider amendments after a final office action, there would certainly be less need to resort to RCEs.

The comment period for these questions runs until February 4, 2013.

Patently-O is reporting that Director Kappos will leave the PTO in late January 2013, capping off 4 years as Undersecretary of Commerce for Intellectual Property and Director of the PTO.

He has led a great transition from the prior regimes of antagonism to patent applicants to the current system of working together to promote openness and problem-solving.  Director Kappos has worked hard on his goal of reducing the patent application backlog and pendency of patent application.  He has promoted openness with the introduction of the Director’s Blog and the Patent Dashboard on current PTO statistics.

Director Kappos was also a strong advocate of patent reform, culminating with his lobbying for passage of the America Invents Act last year.

His leadership will be missed.

Patently-O is also reporting that current PTO Deputy Director Teresa Stanek Rea will assume the role of Acting Director.  She will also likely be nominated for the permanent position.  Rea joined the PTO in 2011 with more than 25 years of legal experience.  She was previously a partner at Crowell & Moring and held at a number of other prominent IP positions including as a past president of the American Intellectual Property Law Association (AIPLA).  She should bring a great industry and bar perspective to the position.

We have now reached the end of FY2012.  It’s time to review PTO numbers again.

The following is a comparison of the PTO’s numbers from the end of June 2012 (at my last numbers update) with the end of FY2012 (September 2012).  Time to refer again to the PTO’s Data Visualization Center to see how things are going. 

First Action Pendency – 21.9 Months

At the end of FY2011, first action pendency was 28 months.  In June, it dropped to 22.6 months.  The 0.7 month progress since June isn’t huge, but the 6.1 month drop during the year is excellent!  That’s nearly a 22% drop in the course of a single year.

“Traditional” Total Pendency – 32.4 Months

Traditional pendency is down from 33.5 months in June.  The 3.3% reduction of over a month is good.  This number has been trending downward and represents good work by the PTO.

Application Pendency with RCEs – 39.4 Months

This number was at 40.0 months in June.  We’ve finally gotten this number under 40 months, but need to continue to do better.  This represents a 1.5% reduction since June and a drop of 1.5 months since FY2011 (3.7%).  This is progress, but the increasing number of RCE filings (and appeals) makes this number look better than it actually is.

Applications Awaiting First Office Action – 608,283

The PTO continues its steady, impressive performance in working through the backlog.  At the end of June, the backlog of unexamined applications was 632,981.  Since then, the backlog has decreased another 3.9%.  This is a very positive trend for the PTO.   This is where the office seems to be making the most progress.

Patent Application Allowance Rate – 51.4%, 68.1%

The first number counts RCE filings as abandonments, while the second number does not, but counts them as continuing prosecution.  These numbers are up from 50.4% and 67.2%, respectively, in June.  While these numbers continue to show slow, steady improvement from earlier record low numbers, they also continue to demonstrate that many patents are allowed by forcing applicants to file RCEs that are not allowed initially.  This is another area where the PTO is making slow, steady progress.  The nearly 17% difference between the two numbers is, however, troubling.  Especially considering the next number

RCE Backlog – 95,200

At the end of FY2010, the PTO reported 40,939 applications with RCE filings that awaited action; at the end of FY2011 that number had crept up to 63,487.  That represents a 50% increase during FY2012 and a 133% increase over the last two years.  Not good . . .

Number of Patent Examiners – 7,837

This number is up from 7,280 in June.  It’s still tough for the PTO to budget properly with no guarantee that fee diversion won’t continue.  This appears to be an all-time high for number of patent examiners.

Pendency from Application Filing to Board Decision - 85.9 Months

The crisis at the Board continues to get worse and shows no signs of abating.   This number continues to climb–from 85.5 months in June.  New technologies become obsolete prior to getting a patent or decision by the Board.  The PTO hired a number of additional patent judges and attorneys to deal with this issue, but the sharp increase in the number of appeals filed has made tackling this an impossibility.   The Board will have significantly greater responsibilities with the beginning of the new post-grant review proceedings.

At the end of FY2012, the Board had 26,484 pending appeals from ex parte application prosecution, a 0.8% reduction since June!  Unfortunately, that’s still a 10.5% incrase for the year.   12,433 new appeals were filed during the fiscal year, which is down from 13,501 filed during FY2011; that’s a 7.9% drop.  Meanwhile, the Board disposed of 9,912 cases during FY2012, an increase of 35.9% from FY2011′s 7,292 such cases!

In other types of cases before the Board, the number of new interferences was 56 compared to 64 during FY2011.  The Board disposed of 62 cases, while concluding only 51 during FY2011.  The number of new ex parte reexam appeals filed was 115, fewer than the 125 filed during FY2011.  Meanwhile, the Board decided 119 of these cases, as its inventory dropped from 26 to 22 during the year.

The other area of significant increase is inter partes reexams.  While 114 appeals were filed in FY2011, 162 were filed during FY2012, a 42% increase.  The Board has decided 149 cases, after having decided only 86 last year. 

Conclusion

The PTO is doing a good job on the front end.  Significant progress is being made on first office action pendency.  The problems begin, however, once an application reaches a final office action.  RCE filings are skyrocketing.  Many or most of these are the result of examiners forcing them on applicants.  This is very inefficient and increases application cost and pendency significantly.

The PTO must come up with a plan to deal with its crisis at the Board.  Applicants deserve the ability to get a final agency decision on a patent application within a reasonable time frame.  The PTO is working hard to try to hire more judges and patent attorneys to work on this situation, but Congress added to its workload as well.  The Board will soon need to deal with post grant oppositions and other procedures from the America Invents Act.

To 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 patent community must continue to pressue congress to keep its hands off the PTO’s money.

The Patent Public Advisory Committee (PPAC) has issued its report on the PTO’s fee proposal published earlier this month.

PPAC praises the PTO for seeking to reduce RCE filings by expanding after final practice and permitting consideration of prior art after payment of the issue fee.  PPAC is also positive about the proposed fee reduction for Track I accelerated examination and elimination of the large fee for late filing of a declaration.  Finally, PPAC approves of shifting the appeal fee from the time of filing the appeal brief to the time that the appeal actually moves to the Patent Trial and Appeal Board (PTAB).  This will eliminate the need to pay the fee if prosecution is reopened by the examiner after the brief is filed, which often happens.

PPAC is critical of the PTO’s other initiative to reduce RCE filings by significantly raising the fee for doing so, especially for second and following RCEs.  These fees are higher than fees for filing a continuation and will not reduce re-filings when they are needed.  PPAC also criticizes the extremely high fees for extra claims; there does not seem to be a need for such high fees as the extra work is not commensurate with the fee levels.

PPAC believes that the rules for contested applications, such as post-grant review, are too complicated and should provide a structured or automatic discovery mechanism.  The fees for supplemental examination and the limitations on the number of references that may be considered are too high for this procedure to be adequately utilized.  Similarly, PPAC argues that the fees for ex parte reexamination are way too high and not commensurate in scope with the work required by the PTO.

In general, PPAC believes that the fees proposed are too high.  Perhaps the PTO is trying to meet its 10 month first office action goal too quickly and should slow the process down to keep from having to increase fees so much at the outset.

Controlling Applicant Behavior

Many of the proposed fees seem to be the PTO using its authority to encourage or discourage certain applicant behavior.  PPAC believes this may be inappropriate because the PTO does not take all motivating factors for such behaviors into account.  For example, applicants may take certain actions in response to a court decision.  PPAC suggests that the PTO should also realize that fee levels will influence office personnel and examiner behavior as well.

The PTO needs to take price elasticity into account when setting fees.  Many or most entities that use PTO services have set budgets for doing so.  As the price increases, these entities will have to reduce their requests for such services.  For example, if the price is too high, the number of applications filed will decrease.

An example of this is that less than half of the PTO’s set ceiling of 10,000 Track I accelerated applications were filed during FY2011.  PPAC believes this is because the PTO set the price for this track too high.

PPAC believes that the significant initial application filing fee, and other fees such as maintenance fees, are being raised so high so quickly as to shock the patent system.  This may result in significant reduction in PTO revenue due to reduced usage by applicants.

In its report, PPAC also recognizes another problem with the AIA.  The PTO’s stated goal is to reduce first action pendency to 10 months and total pendency to 20 months by 2015-16.  Patent applications are only published, however, 18 months from their earliest filing date.  Thus, at a first office action after 10 months, there may be a great deal of prior art that is not yet known to the applicant or the PTO.  Perhaps the PTO will allow claims that it later must unallow due to later publication of invalidating prior art.  This will create additional inefficiencies for the PTO and applicants.

RCEs

Specifically, PPAC argues that the RCEs are a source of frustration to by the PTO and patent applicants.  The PTO seems to place the blame for the increase in RCE filings solely on patent applicants, while PPAC rightfully notes that examiners bear a great deal of the blame. 

The PTO generally measures patent pendency by considering RCE filings as abandonments and new application filings.  Thus, if an RCE is filed, the PTO total pendency numbers go down.  A few years ago, the PTO changed RCE procedures to delay the time for their consideration.  The huge proposed increase in fees significantly aggravates applicants by increasing costs for reduction on service.

PPAC also notes that the recent PTO reduction in unexamined application backlog is nearly commensurate with the RCE backlog plus the appeal backlog.

PPAC is highly critical of the proposed RCE fee increases calling them punitive.

PPAC believes that applicants’ options after a final office action are limited to RCE or appeal.  Both of these fees are too high, especially given that applicants are not allowed to participate in pre-appeal brief conferences.  PPAC supports such participation because without it, these conferences are of little use and the proposed fees are simply too high for RCE or appeals.

Contested Cases

PPAC argues that the fees for contested cases–Inter partes review, post grant review, etc.–are way too high.  PPAC estimates that the costs for these cases, including attorneys’ fees, discovery, etc. will be $250,000 to $500,000.  The proposed fees seem to be much higher than the associated PTO costs.

Conclusion

PPAC’s conclusion is that the PTO did take some public comments into account between its February proposed fees and its September notice and made some reductions to those proposed.  Too many of the fees, however, appear to be attempts to regulate applicant behavior instead of simply to recover the PTO’s associated costs.  PPAC advises the PTO to reconsider some of these proposed fees.