Final Rule—Setting and Adjusting Patent Fees

by John Roberts on July 31, 2020

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Final Rule—Setting and Adjusting Patent Fees

The United States Patent and Trademark Office (USPTO) is setting and adjusting Patent and Patent Trial and Appeal Board fees for the first time in almost three years through its Final Rule, effective on October 2, 2020.

Consistent with federal fee-setting standards, in 2017, the USPTO began its biennial review of fees, costs, and revenues, and found that fee adjustments are necessary to adjust to increasing costs and to provide necessary resources for Patent operations, including implementing the USPTO 2018-2022 Strategic Plan.

In 2018, the Patent Public Advisory Committee (PPAC) held a public hearing in Alexandria, Virginia, inviting members of the public to submit written and/or oral testimony on fee adjustments. PPAC considered the public comments from this hearing and made them available on the USPTO website. Later, PPAC provided a written report setting forth the comments, advice, and recommendations of the public and the committee regarding the preliminary proposed fees.

The USPTO considered and analyzed all comments, advice, and recommendations received from PPAC and then, on July 31, 2019, published a Notice of Proposed Rulemaking regarding Setting and Adjusting Patent Fees during Fiscal Year 2020. The USPTO received and considered comments from four intellectual property (IP) organizations and 40 individuals, attorneys, law firms, corporations, and other associations. Responses to the comments are included in the Final Rule.

More recently, the USPTO has considered the state of the U.S. economy, the operational needs of the agency, and the comments and advice received from the public during the 60-day comment period in determining when to implement the final rule. The USPTO then made adjustments to the timing of the Final Rule based on all of these considerations, specifically to delay publishing the Final Rule from April, with a July effective date, to August, with an October effective date. This approach is consistent with the USPTO’s many other efforts to provide various types of relief to stakeholders, including deadline extensions and fee postponements. Ultimately, the goal of the USPTO is to ensure not only that businesses and entrepreneurs can weather the economic downturn, but also that they can hit the ground running as it passes.

Among the changes made in response to the comments, the USPTO decided not to implement the annual active patent practitioner fee at this time and delayed implementation of the fee related to DOCX.

The overall strategy of the Final Rule is to establish a fee schedule that generates sufficient multi-year revenue to recover the aggregate costs of maintaining USPTO patent-related operations and accomplishing the USPTO’s patent-related strategic goals.

The Final Rule will benefit the IP community by enabling the USPTO to continue to enhance the quality of patent examination, achieve optimal examination times, invest in modernizing patent information technology systems and infrastructure, and provide stability to USPTO operations, even in times of financial fluctuations.

To learn more about the fee changes, please visit the Summary of FY 2020 Final Patent Fee Rule page of the USPTO website.

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