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Fees and Budgetary Issues

The Fees and Budgetary Issues area features information about AIA provisions that impact fees to be paid for services provided by the USPTO.  The provided information will cover, inter alia, agency guidance documents, Notices of Proposed Rulemakings (NPRMs), Final Rulemakings (FRs), and links to Public Comments received in response to NPRMs. 

Fee Setting Authority

Section 10 of the AIA authorizes the Director of the USPTO to set or adjust by rule all patent and trademark fees established, authorized, or charged under Title 35 of the U.S. Code and the Trademark Act of 1946 (15 U.S.C. § 1051 et seq.), respectively.  When fees are set, the aggregate revenue from the patent fees may only recover the aggregate estimated cost of the patent operations, including administrative costs to the USPTO.  Likewise, the aggregate revenue from the trademark fees may only recover the aggregate estimated cost of the trademark operations, also including administrative costs to the USPTO.

When the USPTO proposes to set or adjust fees for “filing, searching, examining, issuing, appealing, and maintaining patent applications and patents” as permitted by the AIA, those proposed fees will include a 50% reduction for small entities and a 75% reduction for micro entities as provided for in section 10(b) of the AIA.  The applicants qualifying for a small entity discount (50%) will be those who meet the “small entity” definition in 35 U.S.C. § 41(h)(1).  The applicants qualifying for a micro entity discount (75%) will be those who meet “micro entity” definition outlined in Section 11(g) of the AIA.

The AIA outlines the process that the USPTO will use when setting or adjusting fees by rule.  This process is intended to be inclusive with two different points in time for the public to comment on proposed fee amounts.

Final Rule Information
Notice of Proposed Rulemaking Information
PPAC Public Hearing Information

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Micro Entities

Section 10(g) of the AIA introduces a new definition and segment of applicants – micro entities – that are distinct from the small entities provided for under 35 U.S. C. § 41(h)(1).   The micro entity definition is added to 35 U.S.C. by introducing a new Section 123 to Title 35.  The AIA defines a micro entity as an applicant who certifies that he/she:

  • Qualifies as a small entity;
  • Has not been named as an inventor on more than 4 previously filed patent applications;
  • Did not, in the calendar year preceding the calendar year in which the applicable fee is paid, have a gross income exceeding 3 times the median household income; and
  • Has not assigned, granted, or conveyed (and is not under obligation to do so) a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is paid, had a gross income exceeding 3 times the median household income.

The micro-entity definition is effective on the date of enactment of AIA (i.e., September 16, 2011). 

A micro-entity is entitled to receive a 75% discount on fees as established under Section 10(a).  But the discount is not available per the AIA until the USPTO sets or adjusts fees for “filing, searching, examining, issuing, appealing, and maintaining patent applications and patents” using the fee setting authority provided for in Section 10 of the AIA.  When the USPTO does so, those proposed fees will include a 50% reduction for small entities and a 75% reduction for micro entities as provided for in section 10(b) of the AIA.  The applicants qualifying for a small entity discount (50%) will be those who meet the current definition in 35 U.S.C. § 41(h)(1).  The applicants qualifying for a micro entity discount (75%) will be those who meet the definition outlined in AIA Section 10(g). 

When applying the micro-entity definition, applicants are not considered to be named on a previously-filed application if he/she has assigned, or is obligated to assign, ownership rights as a result of previous employment.  The definition includes applicants who are employed by an institute of higher education (as defined in 20 U.S.C. 1001(a)) and have assigned, or are obligated to assign, ownership to that institute of higher education.   

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15% Surcharge

The Leahy-Smith America Invents Act (Public Law 112-29) was signed by the President on September 16, 2011. The legislation places a 15 percent surcharge on certain patent fees that is effective 10 days after enactment (i.e., September 26, 2011).  A listing of the fees increase by 15 percent on September 26, 2011 is available here.

The entire updated USPTO fee schedule is available at:  http://www.uspto.gov/about/offices/cfo/finance/fees.jsp.

The fee due is the fee in effect on the date the document is timely filed.  There have been a number of inquiries from the public regarding how to pay fees by postal mail. The options for payment of fees by postal mail are outlined below:  

  1. Certificate of Mailing or Transmission: Certain fees (e.g., issue and maintenance fees) may be paid through the postal mail using a certificate of mailing or transmission.  See 37 C.F.R. 1.8.  Correspondence will be considered as being timely filed on the date of transmission that appears on the certificate.  Fees paid by postal mail with the properly filed certificates of mailing or transmission dated prior to September 26, 2011, will not be subject to the 15 percent surcharge.
  2. Filing by Express Priority Mail: Correspondence will be considered as being timely filed on the date the correspondence is deposited with a U.S. post office, if the Express Priority Mail procedures described in 37 C.F.R. 1.10 are followed.  Fees paid by using Express Priority Mail will not be subject to the 15 percent fee increase when deposited with a U.S. post office, under the provisions of 37 C.F.R. 1.10, prior to September 26, 2011.

When mailing your fee, the USPTO accepts check, money order, credit card authorization, or deposit account authorization.  Electronic payment methods are also available.  Additional information on the currently accepted methods of payment is available at: http://www.uspto.gov/main/faq/index_feefaq_p.html

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Electronic filing incentive

Section 10(h) of the AIA provides for an additional fee of $400 ($200 for small entities) fee to be paid for each application for an original patent that is not filed by electronic means (i.e., mailed or hand delivered).  This provision excludes design, plant, and provisional applications.  The fee is effective 60 days after date of enactment (i.e., November 15, 2011).  Once collected by the USPTO, the fee must be deposited in the Treasury and is not available to the USPTO for spending. 

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Reserve fund

Section 22 of the AIA establishes a Patent and Trademark Fee Reserve Fund to be effective on October 1, 2011.  This provision requires the USPTO to deposit all patent and trademark fees collected in excess of the annual appropriation amount into the fund.  The authorization to spend all fees deposited in this fund should be provided for in the USPTO’s annual appropriations.  When this spending authorization provision is provided for in the USPTO’s annual appropriation, the USPTO will have access to spend all patent and trademark fees it collects.

Section 22 also slightly modifies the provision in 35 U.S.C. § 42(c) that restricts the USPTO to using trademark fees for only trademark operations, including a share of administrative expenses, and establishes a mirror provision requiring patent fees to be used only for patent operations, including a share of administrative expenses.

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Last Modified: 10/23/2014 4:38:05 PM