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There’s quite a bit of irony surrounding the United States Patent andTrademark Office these days. On the one hand, the office is forgingahead with its move to the new campus in Alexandria, Va. On the otherhand, however, the legislative workhorse of the office’s 21st CenturyStrategic Plan sits stalled in a Congress that is about to change itsroster. The new Alexandria campus is radically different from the old labyrinthof buildings in Crystal City. The new campus is modern-looking andgeared toward high-technology. Somehow, it just looks and feels like a patent office should. The showcase public searchfacility is not your father’s public search room. Gone are the crampedquarters and cryptic, treasure maplike directions that led searchers tofar-flung cabinets overflowing with yellowing paper copies of patents.Now, the public search facility has a large, open-feeling search roomequipped with over 300 computer workstations that provide electronicaccess to all of the patent office’s search systems. The United States Patent and Trademark Fee Modernization Act of 2003(and, more recently, of 2004) is similarly modern looking and radicallydifferent than the current environment. Key provisions of the billprovide enabling legislation for a variety of new office initiatives,including outsourcing of patent application prior art searches andestablishment of a multitrack examination process (read Requests forExamination). The provisions of the Fee Modernization Act largely mirror the goals ofthe 21st Century Strategic Plan, a document created by the office as aroad map for its transformation into a “quality-focused, highlyproductive, responsive organization supporting a market-drivenintellectual property system.” For example, outsourcing of prior artsearches is designed to allow the examining corps to focus on its corecompetency — examination of patent claims — and reduce time and effortspent on identifying prior art. The multitrack examination process isdesigned to transition the office to a market-driven system, allowingapplicants to decide when applications are examined and improve theoverall efficiency of the patent office and the quality of issuedpatents in the process. And, of course, the act increases fees. Congress didn’t choose the name”Fee Modernization Act” for any reason. The act includes broad-based andsignificant fee increases. And here’s another dose of irony — the actenjoys wide support from major stakeholders of the office despite itsfee increases. The American Intellectual Property Law Association(AIPLA), the Intellectual Property Owner’s Association (IPO), theBiotechnology Industry Organization (BIO), and other groups have allexpressed unwavering support for the act. Why would these groups support legislation that will increase the feespaid by their members? It’s simple. The office is promising reform andimprovement, and the act includes anti-fee diversion provisions that theoffice says will enable it to deliver on its promises of increasedefficiency and quality. These provisions are aimed at ending thedecade-old practice of using patent office user fees for othergovernmental purposes. Under the act, the office keeps all of the feesit collects, and even has the ability to return fees to users. Theoffice promises that, by being able to keep the fees it generates, itwill dramatically improve patent quality while simultaneously achievinga similarly dramatic shortening of pendency time for patentapplications. As a result, and recently in the face of adversity, stakeholderscontinue to adamantly support the act. But, alas, the act sits stalled. Congress broke for the election at apoint just shy of passing the act, and the anti-fee diversion provisionsare widely viewed as the sticking point. And now, in classicsausage-making fashion, the lame duck 108th Congress has stripped theact of key provisions, including the anti-fee diversion provisions, anddumped the remainder into an appropriations bill. This is a stop-gapmeasure that will increase fees while putting real reform andimprovement on hold. Not exactly the result stakeholders wanted. Just try again next year? Pick up with the newly minted 109th Congresswhere the 108th left off? Perhaps it can be that simple, but it’s notlikely. John Dudas, under secretary of commerce for intellectualproperty and director of the U.S. Patent and Trademark Office, certainlydoesn’t believe it’s that simple. In an address to attendees at therecent annual AIPLA meeting, Dudas reminded people that significant timeand effort has been invested in the 108th Congress and that startinganew is no small effort. So the move to new facilities marches on while the hope for improvedefficiency and quality fades — for now. The office recently announcedthat more of its employees work at the new facility than at the old — amajor milestone in the moving effort. Maybe next year, and the nextCongress, will bring modernization milestones in efficiency and quality.

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