Further Fee Diversion Wrangling Unlikely 

As the saying goes, “almost” only counts in horseshoes and hand grenades. Recent events suggest that patent reform can now be added to the list.

Last week, H.R. 1249 was passed by the House. A copy of the bill, with all amendments, is found (here). A helpful mark-up illustrating the differences between the Senate Bill (S.23) and H.R. 1249 is found here, updated 6/28 to correspond to revised H.R. 1249. (Thanks to Brad Pedersen of Patterson Thuente Christensen & Pedersen for the mark-up).

As discussed last week, typically, the differences between the House Bill and Senate Bill would be reconciled by way of conference in the Senate. Yet, due to the politicizing of the fee diversion proposal of S.23 in the House (i.e., “the Republicans looking to increase government spending”), further tinkering with this proposal would seem risky. Perhaps recognizing that the “almost” compromise of H.R. 1249 is better than nothing in this economically charged political  environment, the USPTO has signaled that 10 years of of patent reform bickering is enough already.

Director Kappos issued the following statement last Friday:

I want to congratulate the House of Representatives for passing the Leahy-Smith America Invents Act  today, and to again thank Judiciary Chairman Smith, Subcommittee Chairman Goodlatte and Ranking Member Watt, as well as the House Leadership, for their stewardship of this critical legislation.

The effort to reform our nation’s patent laws began a decade ago, and House passage today brings patent reform a significant step closer to becoming law. This bi-partisan legislation will transform our patent system, enhance our Nation’s competitiveness and promote economic growth and job creation.

We are encouraged by the statements of so many Members of Congress calling for the USPTO to have full access to all of its fee collections.  We are particularly thankful to Chairman Rogers for his commitment to ensure that the USPTO has full access to its fees when fee collections exceed Congress’ annual appropriation for USPTO.  Full funding of the USPTO is necessary for the USPTO to successfully implement this legislation and to more effectively perform its core mission.

We are hopeful that this critical legislation can move expeditiously toward final passage and enactment.

With hiring and overtime frozen at the USPTO, the Office is being starved of much needed resources to prepare for the new changes proposed in the legislation (not to mention the current workload). When starved, a half a loaf of bread is better than none.