Did the USPTO incentivize issuing patents in 2013?

As I was reviewing the new USPTO fees I noticed something that I found interesting.  The “issue fee” that is due when a patent is allowed is going up only slightly.  For example, the issue fee for a utility application to a “large entity” is increasing from $1,770 to $1,780.  That, in and of itself, is not a big enough change to warrant any notice.  However, the interesting part is that the USPTO has also set issue fees to take effect beginning on January 1, 2014.  Those fees include a large reduction, nearly 50%.  For example, the issue fee for a utility application to a large entity will decrease from $1,780 to $960.

In addition, currently there are two fees that are due when an application issues.  The first is the issue fee but there is also a publication fee.  That fee is currently $300.  However, that fee will be eliminated effective January 1, 2014.  Thus, what used to cost $2,070 costs $2080 as of March 16 but will be reduced to $960, or cut in more than half, as of January 1, 2014.

The USPTO’s reasoning (as discussed at http://www.uspto.gov/aia_implementation/AC54_Final_Rule_Setting78FR4212-2013JAN18.pdf on page 26) in making this change is twofold: 1) the fees throughout the patent process are back-end loaded.  That is, the fees that are initially paid at the time of filing are below cost so that discrepancy is made up at the back end, making it easier to file an application; 2) maintenance fees (due at 3.5, 7.5 and 11.5 years after issuance) will be increased.  The rationale behind this is “patent owners possess less information about the value of their invention than they do a few years later” when maintenance fees are due.

This causes me to wonder, however, whether this is incentivizing the issuance of applications during the 2013 calendar year.  I.e., the USPTO will make far less money on an application that is issued on January 1, 2014 that it will on one issued on December 31, 2013.  This could have the effect of incentivizing more allowances, especially as the year draws to a close.

Only time will tell if this is accurate, of course.  Much of whether this incentive is real probably depends on whether it gets any attention within the USPTO.  If Examiners (and their supervisors) are aware of the discrepancy they may be a little more proactive in identifying applications that can be issued and/or contacting applicants to resolve issues.

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About Dustin Call (26 Posts)

Registered with the USPTO, first as a patent agent and then as a patent attorney, since April 10, 2006 and licensed in Washington as an attorney since November 16, 2006. I have worked for a large firm and now have a solo practice.


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