Improving the Effectiveness of the U.S.P.T.O: Recommendations for Reform

The U.S. patent system is among the most effective in the world, measured in terms of both its geographic and economic scope and the varieties of the technologies protected. Critical to the continued effectiveness of the system is a well-functioning U.S. Patent & Trademark Office (USPTO). However, the USPTO does not function well today. In this Commentary, the Honorable Gerald J. Mossinghoff and Stephen G. Kunin address ways to create a better functioning USPTO. They write:

Adequate Financial Support for the USPTO Without Fee Diversion

     By its very nature, the patent-examining function-determining whether the claims of a patent application should be allowed (and included in a granted patent) or rejected-involves human decisions by patent examiners. State-of-the-art electronic databases and search systems can be used to find relevant prior art against which the examiners can decide whether or not an invention is patentable.

     High-quality patents depend absolutely on a high-quality workforce of highly trained and dedicated professional patent examiners. Those key attributes have been recognized by every group that has studied the patent system in modern times. Case in point: a Presidential Commission on the Patent System established by President Lyndon B. Johnson recommended in 1966:

The commission cannot emphasize too strongly that the prime requirement for optimum Patent Office operation is a dedicated corps of career employees possessing a unique combination of scientific and engineering knowledge and the ability to make sound legal judgments. Assembling and retaining such a staff of highly trained professional personnel in a competitive manpower market requires, among other things, an increasing expenditure of resources.

     Diversion of fees paid by users of the U.S. patent system is inconsistent with this need for an adequate and skilled examining corps needed to keep pace with the USPTO workload, which is increasing both in magnitude and technological complexity. A Report of the National Academy of Sciences on "A Patent System for the 21st Century" recommended:

The patent bar has focused much attention on the fact that for the past several years the fees collected from patent applicants and patent holders have exceeded congressional appropriations to the USPTO by a substantial margin. Approximately $638 million in revenue over 10 years and an estimated $100 million in fiscal year 2004 have been spent on other governmental activities. ... The patent system serves the broad public purpose of stimulating technological innovation. Its budget should be determined on the basis of what resources are needed to perform the function well.

(footnotes omitted)

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