[author: Donald Zuhn]

On Wednesday, the U.S. Patent and Trademark Office published a notice in the Federal Register (77 Fed. Reg. 54360) issuing a final rule regarding the adjustment of certain patent fee amounts for fiscal year 2013 to reflect fluctuations in the Consumer Price Index (CPI).  Pursuant to 35 U.S.C. § 41(f), the Office is authorized to adjust patent fees annually based on the CPI in order to recover higher costs of providing services, but only if the CPI is higher than 1%.

In a notice published in May, the Office used a hypothetical 2.9% increase in fees to demonstrate the impact of the increase, but indicated that the actual fees increases would be set prior to publication of the new fees when the real CPI was known (see "USPTO to Raise Patent Fees A Bit More").  The current notice explains that the Office may adjust patent fees under 35 U.S.C. § 41(a) and (b) to reflect fluctuations in the CPI occurring during the twelve-month period prior to publication of the final rule implementing the fee adjustment, as measured by the Consumer Price Index for All Urban Consumers (CPI–U) as determined by the Secretary of Labor.  The current adjustment in patent fee amounts is based on the Administration's CPI–U for the twelve-month period ending June 30, 2012, which the notice indicates increased by 1.7%.  The fee increases, which are set forth in Table 1 of the notice (pages 54362-63), will be implemented on October 1, 2012.

The notice indicates that the Office received one comment in response to its notice of proposed rulemaking in May.  The lone commenter suggested there should not be more than one fee adjustment per year due to the significant administrative burdens on corporations and patent law firms to adjust their internal systems for paying fees and correctly advising clients of fee increases.  The Office responded that "[i]n the future, the USPTO does not anticipate routinely adjusting patent fees more than once per fiscal year."

In justifying the CPI adjustment, the Office indicates that "[t]he interim fee increase is a bridge to provide resources until the USPTO exercises its fee-setting authority and develops a new fee structure that will provide sufficient financial resources in the long term."  That new fee structure was laid out in a 56-page notice of proposed rulemaking published in the Federal Register today (77 Fed. Reg. 55028).  The Office is seeking comments regarding the proposed fee structure, which must be submitted on or before November 5, 2012 to be considered.

Patent Docs is currently reviewing the new fee structure and will provide additional analysis of the proposed new fees -- including a comparison with the fees proposed last spring; see "USPTO Proposes Fees Changes" -- in a subsequent post.