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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
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"
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.
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