United States Patent and Trademark Office OG Notices: 05 August 2003
DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Part 1
RIN 0651-AB60
Revision of Patent Fees for Fiscal Year 2004
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Final rule.
SUMMARY: The United States Patent and Trademark Office (referred to as
"we", "us", or "our" in this document) is adjusting certain
patent fee amounts to reflect fluctuations in the Consumer Price Index
(CPI). Also, we are adjusting, by a corresponding amount, a few patent
fees that track the affected fees. The Director is authorized to adjust
these fees annually in accordance with the CPI to recover the higher
costs associated with doing business.
Legislation has also been introduced in the Congress that would
alter our fees. If enacted, this legislation would supersede the fees
identified in this final rule.
EFFECTIVE DATE: October 1, 2003.
FOR FURTHER INFORMATION CONTACT: Matthew Lee by e-mail at
matthew.lee@uspto.gov, by telephone at (703) 305-8051, or by fax at
(703) 305-8007.
SUPPLEMENTARY INFORMATION: This final rule adjusts our fees in
accordance with the applicable provisions of title 35, United States
Code, as amended by the Consolidated Appropriations Act, Fiscal Year
2000 (which incorporated the Intellectual Property and Communications
Omnibus Reform Act of 1999) (Pub. L. 106-113). This final rule also
adjusts, by a corresponding amount, a few patent fees (37 CFR 1.17(e),
(r), (s), and (t)) that track statutory fees (either 37 CFR 1.16(a) or
1.17(m)).
Legislation has been introduced in the Congress that would alter
our fees. Customers should be aware that legislative changes to our
fees would supersede this final rule. If such changes occur, we will
make corresponding rule changes by publication in the Federal Register.
Customers may wish to refer to our official website at www.uspto.gov
for the most current fee amounts. Official notices of any fee changes
will appear in the Federal Register and the Official Gazette of the
United States Patent and Trademark Office.
A proposed rule notice was published at 68 FR 23092 on April 30,
2003, which requested comments by May 30, 2003. No comments were
received.
Background
Statutory Provisions
Patent fees are authorized by 35 U.S.C. 41, 119, 120, 132(b) and
376. For fees paid under 35 U.S.C. 41(a) and (b) and 132(b),
independent inventors, small business concerns, and nonprofit
organizations who meet the requirements of 35 U.S.C. 41(h)(1) are
entitled to a fifty-percent reduction.
Section 41(f) of title 35, United States Code, provides that fees
established under 35 U.S.C. 41(a) and (b) may be adjusted on October 1,
1992, and every year thereafter, to reflect fluctuations in the CPI
over the previous twelve months.
Section 41(d) of title 35, United States Code, authorizes the
Director to establish fees for all other processing, services, or
materials related to patents to recover the average cost of providing
these services or materials, except for the fees for recording a
document affecting title, for each photocopy, for each black and white
copy of a patent, and for standard library service.
Section 41(g) of title 35, United States Code, provides that new
fee amounts established by the Director under section 41 may take
effect thirty days after notice in the Federal Register and the
Official Gazette of the United States Patent and Trademark Office.
Fee Adjustment Level
The patent statutory fees established by 35 U.S.C. 41(a) and (b)
will be adjusted on October 1, 2003, to reflect fluctuations occurring
during the twelve-month period from October 1, 2002, through September
30, 2003, in the Consumer Price Index for All Urban Consumers (CPI-U).
The Office of Management and Budget has advised us that in calculating
these fluctuations, we should use CPI-U data as determined by the
Secretary of Labor. In accordance with previous fee-setting
methodology, we base this fee adjustment on the Administration's
projected CPI-U for the twelve-month period ending September 30, 2003,
which is 2.08 percent. Based on this projected CPI-U, patent statutory
fees will be adjusted by 2.08 percent.
Certain patent processing fees established under 35 U.S.C. 41(d),
119, 120, 132(b), 376, and Public Law 103-465 (the Uruguay Round
Agreements Act) will be adjusted to reflect fluctuations in the CPI.
The fee amounts were rounded by applying standard arithmetic rules
so that the amounts rounded will be convenient to the user. Fees for
other than a small entity of $100 or more were rounded to the nearest
$10. Fees of less than $100 were rounded to an even number so that any
comparable small entity fee will be a whole number.
General Procedures
Any fee amount that is paid on or after the effective date of the
fee adjustment will be subject to the new fees then in effect. The
amount of the fee to be paid will be determined by the time of filing.
The time of filing will be determined either according to the date of
receipt in our office or the date reflected on a proper Certificate of
Mailing or Transmission, where such a certificate is authorized under
37 CFR 1.8. Use of a Certificate of Mailing or Transmission is not
authorized for items that are specifically excluded from the provisions
of Sec. 1.8. Items for which a Certificate of Mailing or Transmission
under Sec. 1.8 are not authorized include, for example, filing of
Continued Prosecution Applications (CPAs) under Sec. 1.53(d) and other
national and international applications for patents. See 37 CFR
1.8(a)(2).
Patent-related correspondence delivered by the "Express Mail Post
Office to Addressee" service of the United States Postal Service
(USPS) is considered filed or received in our office on the date of
deposit with the USPS. See 37 CFR 1.10(a)(1). The date of deposit with
the USPS is shown by the "date-in" on the "Express Mail" mailing
label or other official USPS notation.
To ensure clarity in the implementation of the new fees, a
discussion of specific sections is set forth below.
Discussion of Specific Rules
37 CFR 1.16 National Application Filing Fees
Section 1.16, paragraphs (a), (b), (d), and (f) through (i), are
revised to adjust fees established therein to reflect fluctuations in
the CPI.
37 CFR 1.17 Patent Application and Reexamination Processing Fees
Section 1.17, paragraphs (a)(2) through (a)(5), (b) through (e),
(m), and (r) through (t), are revised to adjust fees established
therein to reflect fluctuations in the CPI.
37 CFR 1.18 Patent Post Allowance (Including Issue) Fees
Section 1.18, paragraphs (a) through (c), are revised to adjust
fees established therein to reflect fluctuations in the CPI.
37 CFR 1.20 Post Issuance Fees
Section 1.20, paragraphs (e) through (g), are revised to adjust
fees established therein to reflect fluctuations in the CPI.
37 CFR 1.492 National Stage Fees
Section 1.492, paragraphs (a)(1) through (a)(3), (a)(5), (b), and
(d), are revised to adjust fees established therein to reflect
fluctuations in the CPI.
Other Considerations
This final rule contains no information collection requirements
within the meaning of the Paperwork Reduction Act of 1995, 44 U.S.C.
3501 et seq. This final rule has been determined to be not significant
for purposes of Executive Order 12866. This final rule does not contain
policies with Federalism implications sufficient to warrant preparation
of a Federalism Assessment under Executive Order 13132 (August 4,
1999).
The Deputy General Counsel for General Law of the United States
Patent and Trademark Office has certified to the Chief Counsel for
Advocacy, Small Business Administration, that the final rule change
will not have a significant economic impact on a substantial number of
small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). The final
rule change increases fees to reflect the change in the CPI as
authorized by 35 U.S.C. 41(f). Further, the principal impact of the
major patent fees has already been taken into account in 35 U.S.C.
41(h)(1), which provides small entities with a fifty-percent reduction
in the major patent fees. We received roughly 111,000 patent
applications (approximately 33 percent of total patent applications)
last year from small entities. Since the average small entity fee will
increase by less than $10, with a minimum increase of $1 and a maximum
increase of $35, there will not be a significant economic impact on a
substantial number of small entities due to this final rule change.
List of Subjects in 37 CFR Part 1
Administrative practice and procedure, Patents.
For the reasons set forth in the preamble, we are amending title 37 of
the Code of Federal Regulations, Part 1, as set forth below.
PART 1--RULES OF PRACTICE IN PATENT CASES
1. The authority citation for 37 CFR Part 1 continues to read as
follows:
Authority: 35 U.S.C. 2, unless otherwise noted.
2. Section 1.16 is amended by revising paragraphs (a), (b), (d), and
(f) through (i) to read as follows:
Sec. 1.16 National application filing fees.
(a) Basic fee for filing each application for an original patent,
except provisional, design, or plant applications:
By a small entity (Sec. 1.27(a)) $385.00
By other than a small entity $770.00
(b) In addition to the basic filing fee in an original application,
except provisional applications, for filing or later presentation of
each independent claim in excess of 3:
By a small entity (Sec. 1.27(a)) $43.00
By other than a small entity. $86.00
* * * * *
(d) In addition to the basic filing fee in an original application,
except provisional applications, if the application contains, or is
amended to contain, a multiple dependent claim(s), per application:
By a small entity (Sec. 1.27(a)) $145.00
By other than a small entity. $290.00
* * * * *
(f) Basic fee for filing each design application:
By a small entity (Sec. 1.27(a)) $170.00
By other than a small entity. $340.00
(g) Basic fee for filing each plant application, except provisional
applications:
By a small entity (Sec. 1.27(a)) $265.00
By other than a small entity $530.00
(h) Basic fee for filing each reissue application:
By a small entity (Sec. 1.27(a)) $385.00
By other than a small entity. $770.00
(i) In addition to the basic filing fee in a reissue application,
for filing or later presentation of each independent claim which is in
excess of the number of independent claims in the original patent:
By a small entity (Sec. 1.27(a)). $43.00
By other than a small entity $86.00
* * * * *
3. Section 1.17 is amended by revising paragraphs (a)(2) through
(a)(5), (b) through (e), (m), and (r) through (t) to read as follows:
Sec. 1.17 Patent application and reexamination processing fees.
(a) * * *
(1) * * *
(2) For reply within second month:
By a small entity (Sec. 1.27(a)) $210.00
By other than a small entity $420.00
(3) For reply within third month:
By a small entity (Sec. 1.27(a)) $475.00
By other than a small entity. $950.00
(4) For reply within fourth month:
By a small entity (Sec. 1.27(a)) $740.00
By other than a small entity. $1,480.00
(5) For reply within fifth month:
By a small entity (Sec. 1.27(a)) $1,005.00
By other than a small entity $2,010.00
(b) For filing a notice of appeal from the examiner to the Board of
Patent Appeals and Interferences:
By a small entity (Sec. 1.27(a)) $165.00
By other than a small entity. $330.00
(c) In addition to the fee for filing a notice of appeal, for
filing a brief in support of an appeal:
By a small entity (Sec. 1.27(a)) $165.00
By other than a small entity $330.00
(d) For filing a request for an oral hearing before the Board of
Patent Appeals and Interferences in an appeal under 35 U.S.C. 134:
By a small entity (Sec. 1.27(a)) $145.00
By other than a small entity. $290.00
(e) To request continued examination pursuant to Sec. 1.114:
By a small entity (Sec. 1.27(a)) $385.00
By other than a small entity $770.00
* * * * *
(m) For filing a petition for the revival of an unintentionally
abandoned application, for the unintentionally delayed payment of the
fee for issuing a patent, or for the revival of an unintentionally
terminated reexamination proceeding under 35 U.S.C. 41(a)(7) (Sec.
1.137(b)):
By a small entity (Sec. 1.27(a)) $665.00
By other than a small entity $1,330.00
* * * * *
(r) For entry of a submission after final rejection under Sec.
1.129(a):
By a small entity (Sec. 1.27(a)) $385.00
By other than a small entity $770.00
(s) For each additional invention requested to be examined under
Sec. 1.129(b):
By a small entity (Sec. 1.27(a)) $385.00
By other than a small entity $770.00
(t) For the acceptance of an unintentionally delayed claim for
priority under 35 U.S.C. 119, 120, 121, or 365(a) or (c)
(Secs. 1.55 and 1.78) $1,330.00
4. Section 1.18 is amended by revising paragraphs (a) through (c) to
read as follows:
Sec. 1.18 Patent post allowance (including issue) fees.
(a) Issue fee for issuing each original or reissue patent, except a
design or plant patent:
By a small entity (Sec. 1.27(a)) $665.00
By other than a small entity $1,330.00
(b) Issue fee for issuing a design patent:
By a small entity (Sec. 1.27(a)) $240.00
By other than a small entity $480.00
(c) Issue fee for issuing a plant patent:
By a small entity (Sec. 1.27(a)) $320.00
By other than a small entity $640.00
* * * * *
5. Section 1.20 is amended by revising paragraphs (e) through (g) to
read as follows:
Sec. 1.20 Post issuance fees.
* * * * *
(e) For maintaining an original or reissue patent, except a design
or plant patent, based on an application filed on or after December 12,
1980, in force beyond four years; the fee is due by three years and six
months after the original grant:
By a small entity (Sec. 1.27(a)) $455.00
By other than a small entity $910.00
(f) For maintaining an original or reissue patent, except a design
or plant patent, based on an application filed on or after December 12,
1980, in force beyond eight years; the fee is due by seven years and
six months after the original grant:
By a small entity (Sec. 1.27(a)) $1,045.00
By other than a small entity $2,090.00
(g) For maintaining an original or reissue patent, except a design
or plant patent, based on an application filed on or after December 12,
1980, in force beyond twelve years; the fee is due by eleven years and
six months after the original grant:
By a small entity (Sec. 1.27(a)) $1,610.00
By other than a small entity $3,220.00
* * * * *
6. Section 1.492 is amended by revising paragraphs (a)(1) through
(a)(3), (a)(5), (b), and (d) to read as follows:
Sec. 1.492 National stage fees.
* * * * *
(a) The basic national fee:
(1) Where an international preliminary examination fee as set forth
in Sec. 1.482 has been paid on the international application to the
United States Patent and Trademark Office:
By a small entity (Sec. 1.27(a)) $365.00
By other than a small entity $730.00
(2) Where no international preliminary examination fee as set forth
in Sec. 1.482 has been paid to the United States Patent and Trademark
Office, but an international search fee as set forth in Sec.
1.445(a)(2) has been paid on the international application to the
United States Patent and Trademark Office as an International Searching
Authority:
By a small entity (Sec. 1.27(a)) $385.00
By other than a small entity $770.00
(3) Where no international preliminary examination fee as set forth
in Sec. 1.482 has been paid and no international search fee as set
forth in Sec. 1.445(a)(2) has been paid on the international
application to the United States Patent and Trademark Office:
By a small entity (Sec. 1.27(a)) $540.00
By other than a small entity $1,080.00
(4) * * *
(5) Where a search report on the international application has been
prepared by the European Patent Office or the Japan Patent Office:
By a small entity (Sec. 1.27(a)) $460.00
By other than a small entity $920.00
(b) In addition to the basic national fee, for filing or later
presentation of each independent claim in excess of 3:
By a small entity (Sec. 1.27(a)) $43.00
By other than a small entity $86.00
* * * * *
(d) In addition to the basic national fee, if the application
contains, or is amended to contain, a multiple dependent claim(s), per
application:
By a small entity (Sec. 1.27(a)) $145.00
By other than a small entity $290.00
* * * * *
July 7, 2003 JAMES ROGAN
Under Secretary of Commerce for
Intellectual Property and Director of the
United States Patent and Trademark Office