By Christopher P. Singer —

On February 1, 2010, the U.S. Patent and Trademark Office issued a press release announcing President Obama's $2.3 billion budget request
for the USPTO for fiscal year 2011.

According to the statement, the amount of the
budget request is intended to support and achieve the strategic objectives of
the five-year plan for the USPTO as mapped out by Director Kappos and Commerce
Secretary Locke.  Specific goals
include reducing application pendency and the existing application backlog,
improving patent quality, enhancing IP protection and enforcement, and
upgrading the Office's IT infrastructure and tools in order to achieve total
electronic processing in patents and trademark IT systems.  As first
steps, the PTO plans to make progress toward these goals by restructuring
management and workflow processes and hiring 1,000 patent examiners (search for
positions here
in each of fiscal year 2011 and 2012, specifically targeting former patent examiners
and current IP professionals to increase initial examiner productivity.

The USPTO will continue to provide additional
details concerning its five-year plan later this year.  The breakdown of the FY 2011 $2.3
billion budget includes forecasting almost $2.1 billion in fee collections,
with the remainder (about $224 million) to come from interim fee
increases.  The press release also
notes that a section of the budget request relates to the administration's
continuing support of "granting the USPTO fee-setting authority [rather than Congress] as a
significant part of a sustainable funding model that would allow the director
to propose and set fees in a manner that better reflects the actual cost of
USPTO services."

On Tuesday, the Intellectual Property Owners
Association (IPO) paid particular attention to the fee setting authority
provision of the budget, noting in one of its "Daily News" items that, "the
USPTO would be authorized to raise existing statutory fees in 2011 by rule with
no limits specified."  The item clarified further that the IPO has
consistently opposed prior proposals that would allow the USPTO to set its own
fees.  IPO Executive Director Herb
Wamsley (at left) was quoted in the article and characterized the fee-setting provision as "a
blank check for the USPTO to raise fees that would open the door to increases
far higher than 15 percent."

On Wednesday, Hal Wegner (at right) put the focus on the IPO's
commentary concerning the proposed budget in his widely-read e-mail newsletter,
stating that in order for real improvement to be made in the USPTO, the patent
community would need to support the Administration in its many efforts,
including "fee flexibility in the coming year."  In his criticism of the IPO's comments
against the proposed budget, he noted that the patent community can play an
important role in providing constructive criticism and simple suggestions to
help improve Office procedures, "but it is yet another matter to fail to
support important initiatives so necessary for fixing a broken system."

While it may well be that there is no real need to
shift the fee setting authority from Congress to the USPTO, it also seems very
unlikely that the agency would necessarily abuse such authority if it was
granted.  In light of the effect
that the recession has had on the Office's revenue, the administration should
be well aware that applicants are fully prepared to make decisions based on
economic necessity.  Further, we
can look to the recent example of the interim fix the PTO has provided to
patentees for requesting PTA reconsideration in certain patents based on the
recent Wyeth decision.  The Office has provided a simple form
for making the request.  And,
rather than attempting to associate the request with a processing fee such as
outlined in 37 C.F.R. § 1.705 ($200), the Office requires no fee for filing the
request.  So it would seem that the
current administration is not simply driven by maximizing fees and exploiting
every revenue opportunity.