PTO Proposes Pay to Play

"One size fits all flatters no one."

That's how U.S. Patent & Trademark Office head David Kappos explained the rationale behind a new proposal to create three tracks for patent applications.

For an extra fee, applicants would be able to have their patent processed more quickly. Alternatively, they could opt for regular processing, or they could choose to have their application delayed for up to 30 months.

“The idea is to provide a very significant and comprehensive way for the patent applicant community to help the USPTO order our workload to be more effective in processing patent applications that are most important to the folks who are in the best position to say what’s most important – the applicants themselves,” said Kappos in a press conference call today. “The applicants will order our work queue.”

The PTO’s current basic application fee is $1,090 (less for small entities). For a yet-to-be determined additional amount, applicants could request a prioritized examination, with the goal of getting a first action in four months and final disposition within 12 months.

“It’s very quick processing for those applicants that need it,” Kappos said. Currently, it takes the PTO an average of 27.2 months for a first action and 34.6 months for a patent to issue.

Kappos said the PTO would “love” to discount the first track fee for small entities, but lacks the statutory authority to set fees independently of Congress.

The proposed second tier would be the default, Kappos said, and would be much like the current status quo. If applicants don’t specify, they will automatically be considered second tier.

The third tier would allow the applicant to control delaying review of the application for up to 30 months. Kappos said it’s a request he’s heard often from a wide swath of applicants. For example, he said, some might prefer to focus on marketing or developing additional technology and are in no hurry to get a patent.

Kappos suggested this option might also be less expensive, since the PTO might charge one fee for filing and delay charging a search fee.

The proposal is up for public comment until August 20.

Bart Showalter, who heads the intellectual property practice at Baker Botts, called the proposal “a thoughtful, creative idea, but whether it will work or be something all constituents will sign up for, I don’t know.”

Showalter also noted that the PTO already has a fast-track process known as accelerated examination, which requires more work on the part of the applicant, including substantial documentation of prior art. Earlier this week, Showalter got a patent issued for a client in just seven months via the accelerated process.

Kappos said the new program “is not intended to eliminate or replace the current accelerated examination regime. If an applicant wants to use it, we’ll let them continue to use it.”

Comments

[niku]

I don't know how things work in the US, but in India it would mean that nothing will move unless you pay the extra fees.

"It’s very quick processing for those applicants that need it"
Perhaps the others are applying just for fun?

[John Guest]

At first take, I have one observation and one question. This appears to be a government method of saying, unless you pay a premium, expect no customer service. The question is whether or not someone who files an application taking the slow route could be excluded by a later filer whose work covers the same idea, using the faster system. That would be a very bad result.

[anti_fascist_freedom_fighter]

Might as well - the rich in this country are the only ones allowed to get treated fairly anyway. Look at the Banksters, and British Petroleum...