[author: Donald Zuhn]

Last week, the U.S. Patent and Trademark Office published a notice if the Federal Register (77 Fed. Reg. 28331) proposing another increase in patent fees.  The newly proposed adjustment in fees, which would go into effect on October 1, 2012, is intended 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%.  The notice uses a hypothetical 2.9% increase in fees to demonstrate the impact of the increase, but "proposes that the patent statutory fees established by 35 U.S.C. 41(a) and (b) be adjusted to reflect the most recent fluctuations occurring during the twelve-month period prior to publication of the final rule implementing this CPI adjustment, as measured by the Consumer Price Index for All Urban Consumers (CPI–U)."  Thus, the actual fees increases will be set prior to publication of the new fees.

In addition to annual increases in patent fees to account for increases in the CPI, patent applicants were hit with a 15% surcharge last September as a result of the enactment of the Leahy-Smith America Invents Act (see "USPTO Updates Fee Schedule, But Does Not Yet Offer Micro Entity Discount"), and the Office, exercising its new fee setting authority under § 10 of the AIA, submitted another set of patent fee changes to the Patent Public Advisory Committee (PPAC) in February (see "USPTO Proposes Fees Changes").  The latter increases have yet to go into effect, and last week's notice indicates that those increases "will be implemented in a future separate rulemaking."  The Office called the newly proposed increase an "interim increase" which would serve as "a bridge to provide resources until the USPTO exercises its fee-setting authority [under § 10 of the AIA] and develops a new fee structure that will provide sufficient financial resources in the long term."

Taking note of last year's 15% surcharge and this year's proposed fee re-structuring under the AIA, USPTO Director David Kappos stated on his blog that "it is quite understandable that I am sometimes asked why we need the additional fee increase, given the 15 percent surcharge already in place and plans to implement a revised fee schedule by the first quarter of next year."  In response to this question, the Director writes that:

The answer is: leveling, cash flow, continuity -- much like with any large enterprise.  Think of the CPI adjustment as ensuring "bridge funds."  This planned CPI adjustment will provide a small but needed increase in funding, allowing the USPTO to continue reducing the backlog and pendency until our new fee schedule -- which will provide long-term financial resources -- is in place.

Written comments regarding the Office's notice of proposed rulemaking must be submitted by June 13, 2012.  Comments can be submitted through the Federal eRulemaking Portal, by e-mail to Gilda.Lee@uspto.gov, by facsimile to 571-273–8698 (marked to the attention of Gilda Lee), or by regular mail to:  Director of the United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450, marked to the attention of Gilda Lee.  Comments should also be identified by the Regulatory Information Number (RIN) RIN 0651–AC55.