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The cost of getting a patent is about to go through the roof. The U.S. Patent and Trademark Office recently announced plans to more than double the fees for basic patent applications. Currently, applicants pay $740 to file a patent application, and that includes the cost of examining the application. Under the new schedule, applicants would pay a $300 filing fee and a $1,250 examination fee — an $810 jump over the current filing and examination cost. In addition to the basic fees, the PTO is proposing to tack on thousands more dollars in maintenance and claims fees. Many in the patent bar oppose the measure, saying the additional money will be diverted to other government programs. “It contemplates raising $162 million for the purpose of diversion,” said Michael Kirk, executive director of the American Intellectual Property Law Association. “We are not opposed to a fee increase if that fee increase is needed to provide better quality, reduce pendency and move forward with electronic filing,” Kirk said. “We don’t support raising money for other programs on the back of trademark and patent applicants.” Congress began diverting money from the PTO in 1992. Kirk, a former PTO commissioner, said about $8 million was diverted the first year from a budget of more than $500 million. But the amount has grown to exceed more than $100 million annually. The new fees are outlined in a proposed bill, which the Office of Management and Budget submitted to Congress two weeks ago. The House and Senate must introduce and approve the legislation, which calls for the new fees to go into effect Oct. 1. The fee legislation is part of PTO Director James Rogan’s five-year strategic plan for the agency, which he announced last month. The plan calls for separating the examination fee from the filing fee and enabling applicants to defer examination. Most significantly, the plan would outsource a large portion of the patent examiners’ workload: the search for prior art — earlier inventions related to those covered in a patent application. Examiners are opposed to the move, and they say the proposed fee legislation would clear the way for this outsourcing. The measure specifies that the PTO director may reduce an examination fee for applicants who provide a search report. “It’s a sneaky way of getting congressional approval for making that change” to put searches under the control of the applicant, said Ronald Stern, president of the Patent Office Professional Association, the patent examiners’ union. “Most examiners think that would be disastrous. It’s putting the fox in charge of the hen house.” The PTO proposal would also significantly increase the cost of filing an application with a large number of patent claims. Under the current fee schedule, applicants must pay $18 per claim in excess of 20 claims; small entities pay $9 per extra claim. PTO proposes a scale raising from $80 per claim in excess of 20 to $640 per claim in excess of 35. For applications with more than 40 claims the fee is significantly higher. PTO senior attorney adviser Alice Zalik, who drafted the proposed legislation, said the higher fees for excess claims were intended to prevent an applicant from dividing a large application into smaller applications with fewer than 20 claims. “We’re trying to prevent people from gaming the system,” Zalik said. But patent attorneys say it’s often necessary to have a large number of claims in order to enforce the patent. “Smart patent holders want as many well-written claims as possible,” said Guy Chambers, a San Francisco-based partner at Townsend and Townsend and Crew. “Examiners have the opposite point of view. If they have to examine 100 claims they feel very burdened and it’s a pain for them.”

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