Last year’s America Invents Act made major changes to our patent system, largely designed to improve Patent Office operations, reduce the backlog of applications, and the quality of patents. A properly functioning Patent and Trademark Office (PTO) is vital both to speedy review of patents applied for by companies like Cisco, to weeding out applications that shouldn’t result in patents, and reviewing issued patents to make sure they’re not defective. Yesterday, the PTO set out a framework to help determine fees for using the services of the PTO going forward. While there was a lot of disagreement among various industry groups over various provisions of the patent reform legislation, most agreed on one thing at least: the fees paid by users of the PTO should cover the cost of the services the PTO provides, and the fees, once paid, should actually be available to the PTO to provide those services and not diverted to other purposes.
The PTO’s proposal yesterday fulfills the goals of the America Invents Act. Most important, that proposal is neutral, providing special advantages or imposing special burdens neither on large applicants like Cisco (we apply for over 700 patents per year) nor on smaller applicants who may have very few applications. It makes clear that the higher costs of initial review of patent applications should be reflected in the fees paid, to avoid cross-subsidization among different services, and that applicants should have a choice as to the type of processing desired. The presentation of alternative approaches should lead to a healthy discussion to help the PTO choose the best approach. Either of the approaches is a big step forward from where we were before the AIA. The bottom line is that there’s no free lunch, and no free patent process either. We hope users of the patent office large and small will work together to get a fair and usable result that will lead to the benefits the new law was designed to bring about.