[NEW RULES] The USPTO has announced final rules to implement an annual practitioner maintenance fee. According to the new rules effective December 17, 2008, a practitioner who fails "to pay the annual practitioner maintenance fee required under § 11.8(d) [will] be administratively suspended." Easy to remember, the Fee under Section 11.8 is $118.
What is the point: The $118 fee will raise two or three million dollars for the PTO. Although that money is useful, the primary purpose of the fee is not to raise money. Rather, it an easy way to cull the list of registered practitioners by removing those who are not making money as patent attorneys. In the words of the office, the purposes of the fee include "protecting the public, preserving the integrity of the Office, and maintaining high professional standards."
When folks forget to pay:
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[A] paper submitted in good faith by a practitioner who does not know that he or she has been administratively suspended for failure to pay the annual practitioner maintenance fee will be treated as unsigned. In the case of a new complete application, the applicant will receive a filing date because the signature of an attorney or agent on transmittal papers is not required. In the case of an unsigned bona fide response to an Office action, the submission will be treated in accordance with 37 CFR 1.135(c), and applicant may be given a new period of time to supply the omission. Practitioners should be aware, however, that submission of a response having an omission may affect patent term adjustment pursuant to 37 CFR 1.704(c)(7). In the case of an issue fee payment, an unsigned issue fee transmittal form may lead to abandonment of the application, in which case a petition to revive would be required. |
Who can afford this?
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The Office estimates that, in 2006, the average annual income in the United States of solo practitioners was $231,777; of patent attorneys who are partners in private firms, $434,464; of patent attorneys who are associates in private firms, $152,677; and of corporate IP attorneys, $198,109; and the average annual salary of patent agents in a firm in the United States was $92,761. AIPLA Report of the Economic Survey 2007. |
In many ways, the high average incomes of patent attorneys and patent agents are due to the limits created by the PTO. When only a few can practice patent law, those few are able to charge higher prices. Under traditional protectionist thinking, the Bar would want to take steps that solidify the monopoly by encouraging further barriers to entry and take pains to show that the limits on practice lead to better results.
Notes:
- These final rules are based on a minor portion of a five-year-old 2003 notice of proposed rulemaking. [LINK]
- The proposed rules would have added continuing education requirements as well.
- At that time, the AIPLA stated that it was “conceptionally … not opposed to an annual fee for registered practitioners.” The organization was, however, concerned with the practicalities of paying and with the problems created by attorneys forgetting to pay.
- The following anonymous coment was submitted in response to the 2003 rule proposal:
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Dear Bureaucrats: Stuff your annual fees for attorneys and agents. You are really getting to be a bunch of greedy pigs. The fee structure is venal and complex enough as it is. Actually taxes should pay for mast of the PTO, but while you are not to blame for that, your asskissing desire to show your superiors haw you can rake in profits with nasty, petty little fees for ever trivial action is on your heads. Stuff your continuing education also. If you people would keep your Rules of Practice up to date and written in intelligible language instead of insider bureaucratic gobbledygook there would be no need for continuing education. How hard is is to keep your Rules up to date in this era of wordprocessing? If the Manual of Patent Examining Procedure has grown from 1 inch to 5 inches in the span of a couple of decades, maybe the problem is with too many stupid petty rules and fees to understand. God knows writing patent applications isn't that hard. We need a five inch manual for this? Are you people martyrs over there? All I ever hear is whining and attitude that the public should do all the work in prosecuting patent applications so the poor bureaucrats can twiddle their thumbs. Why don't you get it over with and specify that applicants should do a self?examination as to patentability and swear that it is accurate under penalty of law so that the Patent Office doesn't have to do anything? You people are out of control. It is time the the PTO is privatized so we get less attitude. |
