CPI Adjustment of Patent Fees for Fiscal Year 2013, 54360-54367 [2012-21974]
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Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
protections by increasing the transparency of
CPO and CTA swap activities to their pool
participants and clients.
[FR Doc. 2012–21606 Filed 9–4–12; 8:45 am]
BILLING CODE 6351–01–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Parts 1 and 41
[PTO–C–2011–0007]
RIN 0651–AC55
CPI Adjustment of Patent Fees for
Fiscal Year 2013
United States Patent and
Trademark Office, Commerce.
ACTION: Final rule.
AGENCY:
The United States Patent and
Trademark Office (Office or USPTO) is
adjusting certain patent fee amounts for
fiscal year 2013 to reflect fluctuations in
the Consumer Price Index (CPI). The
patent statute provides for the annual
CPI adjustment of patent fees set by
statute to recover the higher costs
associated with doing business as
reflected by the CPI.
DATES: This final rule is effective on
October 5, 2012.
FOR FURTHER INFORMATION CONTACT:
Gilda Lee by email at
Gilda.Lee@uspto.gov, by telephone at
(571) 272–8698, or by fax at (571) 273–
8698.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Executive Summary
Purpose: Section 41(f) of Title 35 of
the United States Code provides the
USPTO with the authority to adjust
certain statutory patent fees to reflect
fluctuations during the preceding
twelve months in the Consumer Price
Index (CPI). The purpose of this
provision is to allow the USPTO to
recover higher costs of providing
services as reflected by the CPI. This
final rule sets forth which fees will be
adjusted and how the adjustment is
calculated based on the current
fluctuation in the CPI over the twelve
months preceding this notice.
Summary of Major Provisions: The
USPTO is adjusting certain patent fees
in accordance with 35 U.S.C. 41(f), as
amended by the Consolidated
Appropriations Act (Pub. L. 108–447,
118 Stat. 2809 (2004)) and the LeahySmith America Invents Act (Pub. L.
112–29). The fee increase helps the
USPTO to meet its strategic goals and
maintain effective and efficient
operation of the patent system.
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Costs and Benefits: This rulemaking is
not economically significant as that
term is defined in Executive Order
12866 (Sept. 30, 1993).
Background
Statutory Provisions: Patent fees are
set by or under the authority provided
in 35 U.S.C. 41, 119, 120, 132(b), 156,
157(a), 255, 302, 311, 376, section
532(a)(2) of the Uruguay Round
Agreements Act (URAA) (Pub. L. 103–
465, § 532(a)(2), 108 Stat. 4809, 4985
(1994)), and section 4506 of the
American Inventors Protection Act of
1999 (AIPA) (Pub. L. 106–113, 113 Stat.
1501, 1501A–565 (1999)). 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.
The USPTO published a notice
proposing to adjust the patent fees
charged under 35 U.S.C. 41(a) and (b)
for fiscal year 2013 to reflect
fluctuations in the CPI on May 14, 2012.
The fiscal year 2005 Consolidated
Appropriations Act (section 801 of
Division B) provided that 35 U.S.C.
41(a), (b), and (d) shall be administered
in a manner that revises patent
application fees (35 U.S.C. 41(a)) and
patent maintenance fees (35 U.S.C.
41(b)), and provides for a separate filing
fee (35 U.S.C. 41(a)), search fee (35
U.S.C. 41(d)(1)), and examination fee
(35 U.S.C. 41(a)(3)) during fiscal years
2005 and 2006. See Public Law 108–
447, 118 Stat. 2809, 2924–30 (2004). The
Omnibus Appropriations Act, 2009,
extended the patent and trademark fee
provisions of the fiscal year 2005
Consolidated Appropriations Act
through September 30, 2011. See Public
Law 112–4, 125 Stat. 6 (2011); Public
Law 111–322, 124 Stat. 3518 (2010);
Public Law 111–317, 124 Stat. 3454
(2010); Public Law 111–290, 124 Stat.
3063 (2010); Public Law 111–242, 124
Stat. 2607 (2010); Public Law 111–224,
124 Stat. 2385 (2010); Public Law 111–
117, 123 Stat. 3034 (2009); Public Law
111–8, 123 Stat. 524 (2009); Public Law
111–6, 123 Stat. 522 (2009); Public Law
111–5, 123 Stat. 115 (2009); Public Law
110–329, 122 Stat. 3574 (2008); Public
Law 110–161, 121 Stat. 1844 (2007);
Public Law 110–149, 121 Stat. 1819
(2007); Public Law 110–137, 121 Stat.
1454 (2007); Public Law 110–116, 121
Stat. 1295 (2007); Public Law 110–92,
121 Stat. 989 (2007); Public Law 110–5,
121 Stat. 8 (2007); Public Law 109–383,
120 Stat. 2678 (2006); Public Law 109–
369, 120 Stat. 2642 (2006); and Public
Law 109–289, 120 Stat. 1257 (2006). The
Leahy-Smith America Invents Act,
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enacted September 16, 2011, codified
the patent and trademark fee provisions
of the fiscal year 2005 Consolidated
Appropriations Act.
Section 11 of the Leahy-Smith
America Invents Act provides for a
surcharge of fifteen percent, rounded by
standard arithmetic rules, on all fees
charged or authorized by 35 U.S.C.
41(a), (b), and (d)(1), as well as by 35
U.S.C. 132(b). Section 11 of the Act
provides that this fifteen percent
surcharge is effective ten days after the
date of enactment (i.e., September 26,
2011). Section 11 also provides that this
fifteen percent surcharge shall
terminate, with respect to a fee to which
the surcharge applies, on the effective
date of the setting or adjustment of that
fee pursuant to the exercise of the
authority under section 10 of the Act for
the first time with respect to that fee.
Section 10 fee-setting will be
implemented in a future separate
rulemaking.
As for this rulemaking, 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
Consumer Price Index over the previous
twelve months. If the annual change in
CPI is one percent or less, no fee
adjustment for CPI fluctuations will be
pursued.
This CPI increase will be
implemented on October 1, 2012. This
interim increase in fees is necessary to
allow the USPTO to meet its strategic
goals within the time frame outlined in
the FY 2013 President’s Budget. The
interim fee increase is a bridge to
provide resources until the USPTO
exercises its fee-setting authority and
develops a new fee structure that will
provide sufficient financial resources in
the long term. An adequately funded
USPTO will optimize the administration
of the U.S. intellectual property system,
and thereby move innovation to the
marketplace more quickly, creating and
sustaining U.S. jobs and enhancing the
health and living standards of
Americans.
Fee Adjustment Level: The patent
statutory fees established by 35 U.S.C.
41(a) and (b) are adjusted to reflect the
most recent fluctuations occurring
during the twelve-month period prior to
publication of the final rule
implementing this CPI adjustment, as
measured by the Consumer Price Index
for All Urban Consumers (CPI–U). The
Office of Management and Budget
(OMB) has advised that in calculating
these fluctuations, the USPTO should
use CPI–U data as determined by the
Secretary of Labor, which is found at
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Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
‘‘https://www.bls.gov/cpi/’’. In
accordance with the above description
of the statutory fee adjustment, the
USPTO is adjusting patent statutory fee
amounts based on the Administration’s
CPI–U for the twelve-month period
ending June 30, 2012.
The fees other than small entity
patent statutory fees have been adjusted
based on the June 2011 to June 2012
annual CPI–U increase of 1.7%. These
fee amounts were then rounded by
applying standard arithmetic rules so
that the resulting amounts will be
consistent 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 the nearest
even number so that any comparable
small entity fee will be a whole number.
The small entity fee amounts are 50%
of the other than small entity fee
amounts.
General Procedures: Any fee amount
adjusted by the final rule that is paid on
or after the effective date of the fee
adjustment enacted by the final rule is
subject to the new fees in effect. The
amount of the fee to be paid for a given
item will be determined by the time of
filing of that item with the Office. The
time of filing will be determined either
according to the date of receipt in the
Office (37 CFR 1.6) 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 37 CFR 1.8. Items for
which a Certificate of Mailing or
Transmission under 37 CFR 1.8 is not
authorized include, for example, filing
of 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 the
USPTO 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, and examination fees: Section
1.16, paragraphs (a) through (e), (h)
through (j) and (o) through (s), is revised
to adjust fees established therein to
reflect fluctuations in the CPI–U. See
Table 1.
37 CFR 1.17 Patent application and
reexamination processing fees: Section
1.17, paragraphs (a)(1) through (a)(5), (l),
and (m), is revised to adjust fees
54361
established therein to reflect
fluctuations in the CPI–U. See Table 1.
37 CFR 1.18 Patent post allowance
(including issue) fees: Section 1.18,
paragraphs (a) through (c), is revised to
adjust fees established therein to reflect
fluctuations in the CPI–U. See Table 1.
37 CFR 1.20 Post issuance fees:
Section 1.20, paragraphs (c)(3)–(c)(4),
and (d) through (g), is revised to adjust
fees established therein to reflect
fluctuations in the CPI–U. See Table 1.
37 CFR 1.492 National stage fees:
Section 1.492, paragraphs (a), (c)(2), (d)
through (f) and (j), is revised to adjust
fees established therein to reflect
fluctuations in the CPI–U. See Table 1.
37 CFR 41.20 Fees: Section 41.20,
paragraphs (b)(1) through (b)(3), is
revised to adjust fees established therein
to reflect fluctuations in the CPI–U. See
Table 1.
Fee Amount Adjustments: Table 1
shows the adjusted patent statutory fee
amounts and fee adjustments based on
the June 2011 to June 2012 annual CPI–
U increase of 1.7%. The other than
small entity fee amounts have been
adjusted by 1.7%. These fee amounts
were then rounded by applying
standard arithmetic rules. 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 the nearest
even number. The small entity fee
amounts are 50% of the large entity fee
amounts.
TABLE 1—FEE ADJUSTMENT CALCULATIONS BASED ON CPI-U ADJUSTMENT OF 1.7%
Current fee
amount
37 CFR
Fee title
1.16(a)(1) ....
Filing of Utility Patent Application (on or after 12/8/2004) ........................
1.16(a)(1) ....
Filing of Utility Patent Application (electronic filing for small entities) (on
or after 12/8/2004).
Filing of Design Patent Application (on or after 12/8/2004) .....................
1.16(b)(1) ....
1.16(c)(1) .....
Filing of Design Patent Application (Continued Prosecution Application)
(on or after 12/8/2004).
Filing of Plant Patent Application (on or after 12/8/2004) ........................
1.16(d) .........
Provisional Application Filing ....................................................................
1.16(e)(1) ....
Filing of Reissue Patent Application (on or after 12/8/2004) ....................
1.16(e)(1) ....
Filing of Reissue Patent Application (CPA) (on or after 12/8/2004) .........
1.16(h) .........
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1.16(b)(1) ....
Independent Claims in Excess of Three ...................................................
1.16(h) .........
Reissue Independent Claims in Excess of Three .....................................
1.16(i) ..........
Claims in Excess of Twenty ......................................................................
1.16(i) ..........
Reissue Total Claims in Excess of Twenty ..............................................
1.16(j) ..........
Multiple Dependent Claims .......................................................................
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New fee
amount
Fee
adjustment
$380
Small Entity
(SE) $190
$95
$390
SE $195
$10
SE $5
$98
$3
$250
SE $125
$250
SE $125
$250
SE $125
$250
SE $125
$380
SE $190
$380
SE $190
$250
SE $125
$250
SE $125
$60
SE $30
$60
SE $30
$450
SE $225
$250
SE $125
$250
SE $125
$250
SE $125
$250
SE $125
$390
SE $195
$390
SE $195
$250
SE $125
$250
SE $125
$62
SE $31
$62
SE $31
$460
SE $230
$0
SE $0
$0
SE $0
$0
SE $0
$0
SE $0
$10
SE $5
$10
SE $5
$0
SE $0
$0
SE $0
$2
SE $1
$2
SE $1
$10
SE $5
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Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
TABLE 1—FEE ADJUSTMENT CALCULATIONS BASED ON CPI-U ADJUSTMENT OF 1.7%—Continued
Current fee
amount
37 CFR
Fee title
1.16(o) .........
Utility Patent Examination .........................................................................
1.16(p) .........
Design Patent Examination .......................................................................
1.16(q) .........
Plant Patent Examination ..........................................................................
1.16(r) ..........
Reissue Patent Examination .....................................................................
1.16(s) .........
1.17(a)(1) ....
Utility Application Size Fee—For each additional 50 sheets that exceeds 100 sheets.
Design Application Size Fee—For each additional 50 sheets that exceeds 100 sheets.
Plant Application Size Fee—For each additional 50 sheets that exceeds
100 sheets.
Reissue Application Size Fee—For each additional 50 sheets that exceeds 100 sheets.
Provisional Application Size Fee—For each additional 50 sheets that
exceeds 100 sheets.
Extension for Response within First Month ..............................................
1.17(a)(2) ....
Extension for Response within Second Month .........................................
1.17(a)(3) ....
Extension for Response within Third Month .............................................
1.17(a)(4) ....
Extension for Response within Fourth Month ...........................................
1.17(a)(5) ....
Extension for Resonse within Fifth Month ................................................
1.17(l) ..........
Petition to Revive Unavoidably Abandoned Application ...........................
1.17(m) ........
Petition to Revive Unintentionally Abandoned Application .......................
1.18(a) .........
Utility Issue ................................................................................................
1.18(a) .........
Reissue Issue ............................................................................................
1.18(b) .........
Design Issue ..............................................................................................
1.18(c) .........
Plant Issue .................................................................................................
1.20(c)(3) .....
Reexamination Independent Claims in Excess of Three ..........................
1.20(c)(4) .....
Reexamination Total Claims in Excess of Twenty ...................................
1.20(d) .........
Statutory Disclaimer ..................................................................................
1.20(e) .........
First Stage Maintenance ...........................................................................
1.20(f) ..........
Second Stage Maintenance ......................................................................
1.20(g) .........
Third Stage Maintenance ..........................................................................
1.492(a) .......
Filing of PCT National Stage Application ..................................................
1.492(b)(3) ..
1.492(b)(4) ..
PCT National Stage Search Search Report Prepared and Provided to
USPTO.
PCT National Stage Search—All Other Situations ...................................
1.492(c)(2) ...
PCT National Stage Examination—All Other Situations ...........................
1.492(d) .......
Independent Claims in Excess of Three ...................................................
1.492(e) .......
Total Claims in Excess of Twenty .............................................................
1.492(f) ........
Multiple Dependent Claims .......................................................................
1.492(j) ........
PCT National Stage Application Size Fee ................................................
41.20(b)(1) ..
Notice of Appeal ........................................................................................
1.16(s) .........
1.16(s) .........
1.16(s) .........
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1.16(s) .........
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$250
SE $125
$160
SE $80
$200
SE $100
$750
SE $375
$310
SE $155
$310
SE $155
$310
SE $155
$310
SE $155
$310
SE $155
$150
SE $75
$560
SE $280
$1,270
SE $635
$1,980
SE $990
$2,690
SE $1,345
$620
SE $310
$1,860
SE $930
$1,740
SE $870
$1,740
SE $870
$990
SE $495
$1,370
SE $685
$250
SE $125
$60
SE $30
$160
SE $80
$1,130
SE $565
$2,850
SE $1,425
$4,730
SE $2,365
$380
SE $190
$490
SE $245
$620
SE $310
$250
SE $125
$250
SE $125
$60
SE $30
$450
SE $225
$310
SE $155
$620
SE $310
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New fee
amount
$250
SE $125
$160
SE $80
$200
SE $100
$760
SE $380
$320
SE $160
$320
SE $160
$320
SE $160
$320
SE $160
$320
SE $160
$150
SE $75
$570
SE $285
$1,290
SE $645
$2,010
SE $1,005
$2,730
SE $1,365
$630
SE $315
$1,890
SE $945
$1,770
SE $885
$1,770
SE $885
$1,010
SE $505
$1,390
SE $695
$250
SE $125
$62
SE $31
$160
SE $80
$1,150
SE $575
$2,900
SE $1,450
$4,810
SE $2,405
$390
SE $195
$500
SE $250
$630
SE $315
$250
SE $125
$250
SE $125
$62
SE $31
$460
SE $230
$320
SE $160
$630
SE $315
05SER1
Fee
adjustment
$0
SE $0
$0
SE $0
$0
SE $0
$10
SE $5
$10
SE $5
$10
SE $5
$10
SE $5
$10
SE $5
$10
SE $5
$0
SE $0
$10
SE $5
$20
$10
$30
SE $15
$40
SE $20
$10
SE $5
$30
SE $15
$30
SE $15
$30
SE $15
$20
SE $10
$20
SE $10
$0
SE $0
$2
SE $1
$0
SE $0
$20
SE $10
$50
SE $25
$80
SE $40
$10
SE $5
$10
SE $5
$10
SE $5
$0
SE $0
$0
SE $0
$2
SE $1
$10
SE $5
$10
SE $5
$10
SE $5
Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
54363
TABLE 1—FEE ADJUSTMENT CALCULATIONS BASED ON CPI-U ADJUSTMENT OF 1.7%—Continued
Current fee
amount
37 CFR
Fee title
41.20(b)(2) ..
Filing a Brief in Support of an Appeal .......................................................
41.20(b)(3) ..
Request for Oral Hearing ..........................................................................
Comment and Response to Comment:
The USPTO published a notice
proposing to adjust the patent fees
charged under 35 U.S.C. 41(a) and (b)
for fiscal year 2013 to reflect
fluctuations in the CPI. The Office
received one comment in response to
the proposed rule. The commenter
supports the proposed CPI adjustment
of fees for FY 2013 as an interim fee
increase until the USPTO exercises its
fee-setting authority under Section 10 of
the AIA. However, because of the
significant administrative burdens on
corporations and patent law firms to
adjust their internal systems for paying
fees and correctly advising clients of fee
increases, it is suggested there should
not be more than one fee adjustment per
year. The commenter suggests that in
future years, CPI adjustments and
Section 10 adjustments should be timed
so as to avoid having two separate
adjustments in the same year. The
Office’s response is patent fees are being
set under 35 U.S.C. 41(a) and (b) to
ensure proper funding for effective
operations. As previously discussed,
this interim increase in fees is necessary
to allow the USPTO to meet its strategic
goals within the time frame outlined in
the FY 2013 President’s Budget. In the
future, the USPTO does not anticipate
routinely adjusting patent fees more
than once per fiscal year.
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Rulemaking Considerations
Final Regulatory Flexibility Analysis
The Office has prepared the following
Final Regulatory Flexibility Analysis.
1. Description of the reasons that
action by the agency is being
considered: The USPTO is adjusting the
patent fees set under 35 U.S.C. 41(a) and
(b) to ensure proper funding for effective
operations. The patent fee CPI
adjustment under 35 U.S.C. 41(f) is a
routine adjustment that has generally
occurred on an annual basis when
necessary to recover the higher costs of
USPTO operations that occur due to the
increase in the price of products and
services.
2. Statement of the objectives of, and
legal basis for, the final rule: Patent fees
are set by or under the authority
provided in 35 U.S.C. 41, 119, 120,
132(b), 156, 157(a), 255, 302, 311, 376,
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$620
SE $310
$1,240
SE $620
section 532(a)(2) of the URAA, and 4506
of the AIPA. The objective of the change
is to adjust patent fees set under 35
U.S.C. 41(a) and (b) as an annual,
routine step in order to recover the
higher costs of USPTO operations as
reflected by the CPI. 35 U.S.C. 41(f)
provides that fees established under 35
U.S.C. 41(a) and (b) may be adjusted
every year to reflect fluctuations in the
CPI over the previous twelve months.
3. Statement of Significant Issues
Raised by the Public Comments in
Response to the IRFA and the Office’s
Response to Such Issues: The Office
received no comments concerning the
Initial Regulatory Flexibility Act
analysis.
4. Description and estimate of the
number of affected small entities: The
Small Business Administration (SBA)
small business size standards applicable
to most analyses conducted to comply
with the Regulatory Flexibility Act are
set forth in 13 CFR 121.201. These
regulations generally define small
businesses as those with fewer than a
maximum number of employees or less
than a specified level of annual receipts
for the entity’s industrial sector or North
American Industry Classification
System (NAICS) code. The USPTO,
however, has formally adopted, with
SBA approval, an alternate size standard
as the size standard for the purpose of
conducting an analysis or making a
certification under the Regulatory
Flexibility Act for patent-related
regulations. See Business Size Standard
for Purposes of United States Patent and
Trademark Office Regulatory Flexibility
Analysis for Patent-Related Regulations,
71 FR 67109 (Nov. 20, 2006), 1313 Off.
Gaz. Pat. Office 60 (Dec. 12, 2006). This
alternate small business size standard is
the previously established size standard
that identifies the criteria entities must
meet to be entitled to pay reduced
patent fees. See 13 CFR 121.802. If
patent applicants identify themselves on
the patent application as qualifying for
reduced patent fees, the USPTO
captures this data in the Patent
Application Location and Monitoring
(PALM) database system, which tracks
information on each patent application
submitted to the USPTO.
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New fee
amount
$630
SE $315
$1,260
SE $630
Fee
adjustment
$10
SE $5
$20
SE $10
Unlike the general SBA small
business size standards set forth in 13
CFR 121.201, USPTO’s approved
alternative size standard is not industryspecific. Specifically, the USPTO
definition of small business concern for
Regulatory Flexibility Act purposes is a
business or other concern that: (1) Meets
the SBA’s definition of a ‘‘business
concern or concern’’ set forth in 13 CFR
121.105; and (2) meets the size
standards set forth in 13 CFR 121.802
for the purpose of paying reduced
patent fees, namely, an entity: (a) Whose
number of employees, including
affiliates, does not exceed 500 persons;
and (b) which has not assigned, granted,
conveyed, or licensed (and is under no
obligation to do so) any rights in the
invention to any person who made it
and could not be classified as an
independent inventor, or to any concern
which would not qualify as a non-profit
organization or a small business concern
under this definition. See Business Size
Standard for Purposes of United States
Patent and Trademark Office Regulatory
Flexibility Analysis for Patent-Related
Regulations, 71 FR at 67112 (November
20, 2006), 1313 Off. Gaz. Pat. Office at
63 (December 12, 2006).
The changes in this final rule will
apply to any small entity that files a
patent application, or has a pending
patent application or unexpired patent.
The changes in this final rule will
specifically apply when an applicant or
patentee pays an application filing or
national stage entry fee, search fee,
examination fee, extension of time fee,
notice of appeal fee, appeal brief fee,
request for an oral hearing fee, petition
to revive fee, issue fee, or patent
maintenance fee.
The USPTO has been advised that a
number of small entity applicants and
patentees do not claim small entity
status for various reasons. See Business
Size Standard for Purposes of United
States Patent and Trademark Office
Regulatory Flexibility Analysis for
Patent-Related Regulations, 71 FR at
67110 (November 20, 2006), 1313 Off.
Gaz. Pat. Office at 61 (December 12,
2006). Therefore, the USPTO is also
considering all other entities paying
patent fees to be small entities as well
in an effort to capture the impact on all
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Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
small entity applicants whether they
claim that status or not. While the
USPTO does not record the number of
small entity filers in a given year, the
USPTO estimates that in FY 2011, of the
patent fees where a small entity
discount is available, 3,980,519 patent
fees were paid, out of which 1,190,558
fees claimed the small entity discount.
5. Description of the reporting,
recordkeeping and other compliance
requirements of the final rule, including
an estimate of the classes of small
entities which will be subject to the
requirement and the type of professional
skills necessary for preparation of the
report or record: This final rule does not
require any reporting or recordkeeping
or incorporate other compliance
requirements. This final rule only
adjusts patent fees (as discussed
previously) to reflect changes in the CPI.
6. Description of any significant
alternatives to the final rule which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
rule on small entities: The alternative of
not adjusting patent fees would have a
lesser economic impact on small
entities, but would not accomplish the
stated objectives of the applicable
statutes. The USPTO is making a small
adjustment to patent fees, under 35
U.S.C. 41(f), to ensure proper funding
for effective operations in light of
changes in the CPI. The patent fee CPI
adjustment is a routine adjustment that
has generally occurred on an annual
basis to recover the higher costs of
USPTO operations that occur due to
increases in the price of products and
services. This CPI adjustment helps the
Office maintain effective operations and
decrease patent pendency levels.
7. Identification, to the extent
practicable, of all relevant Federal rules
which may duplicate, overlap or conflict
with the final rule: The USPTO is the
sole agency of the United States
Government responsible for
administering the provisions of Title 35,
United States Code, pertaining to
examination and granting patents.
Therefore, no other Federal, state, or
local entity shares jurisdiction over the
examination and granting of patents and
there are no duplicative, overlapping or
conflicting rules.
Other countries, however, have their
own patent laws, and an entity desiring
a patent in a particular country must
make an application for patent in that
country, in accordance with the
applicable law. Although the potential
for overlap exists internationally, this
cannot be avoided except by treaty
(such as the Paris Convention for the
Protection of Industrial Property, or the
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Patent Cooperation Treaty (PCT)).
Nevertheless, the USPTO believes that
there are no other duplicative or
overlapping rules.
B. Executive Order 13132 (Federalism)
This rulemaking does not contain
policies with federalism implications
sufficient to warrant preparation of a
Federalism Assessment under Executive
Order 13132 (Aug. 4, 1999).
C. Executive Order 12866 (Regulatory
Planning and Review)
This rulemaking has been determined
to be significant for purposes of
Executive Order 12866 (Sept. 30, 1993),
as amended by Executive Order 13258
(Feb. 26, 2002), and Executive Order
13422 (Jan. 18, 2007).
D. Executive Order 13563 (Improving
Regulation and Regulatory Review)
The Office has complied with
Executive Order 13563. Specifically, the
Office has, to the extent feasible and
applicable: (1) Made a reasoned
determination that the benefits justify
the costs of the rule; (2) tailored the rule
to impose the least burden on society
consistent with obtaining the regulatory
objectives; (3) selected a regulatory
approach that maximizes net benefits;
(4) specified performance objectives; (5)
identified and assessed available
alternatives; (6) involved the public in
an open exchange of information and
perspectives among experts in relevant
disciplines, affected stakeholders in the
private sector, and the public as a
whole, and provided on-line access to
the rulemaking docket; (7) attempted to
promote coordination, simplification,
and harmonization across government
agencies and identified goals designed
to promote innovation; (8) considered
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public; and (9) ensured
the objectivity of scientific and
technological information and
processes.
E. Executive Order 13175 (Tribal
Consultation)
This rulemaking will not: (1) Have
substantial direct effects on one or more
Indian tribes; (2) impose substantial
direct compliance costs on Indian tribal
governments; or (3) preempt tribal law.
Therefore, a tribal summary impact
statement is not required under
Executive Order 13175 (Nov. 6, 2000).
F. Executive Order 13211 (Energy
Effects)
This rulemaking is not a significant
energy action under Executive Order
13211 because this rulemaking is not
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likely to have a significant adverse effect
on the supply, distribution, or use of
energy. Therefore, a Statement of Energy
Effects is not required under Executive
Order 13211 (May 18, 2001).
G. Executive Order 12988 (Civil Justice
Reform)
This rulemaking meets applicable
standards to minimize litigation,
eliminate ambiguity, and reduce burden
as set forth in sections 3(a) and 3(b)(2)
of Executive Order 12988 (Feb. 5, 1996).
H. Executive Order 13045 (Protection of
Children)
This rulemaking does not concern an
environmental risk to health or safety
that may disproportionately affect
children under Executive Order 13045
(Apr. 21, 1997).
I. Executive Order 12630 (Taking of
Private Property)
This rulemaking will not effect a
taking of private property or otherwise
have taking implications under
Executive Order 12630 (Mar. 15, 1988).
J. Congressional Review Act
Under the Congressional Review Act
provisions of the Small Business
Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.), the USPTO
has submitted a report containing the
final rule and other required
information to the U.S. Senate, the U.S.
House of Representatives and the
Comptroller General of the Government
Accountability Office. The changes in
this final rule will not result in an
annual effect on the economy of 100
million dollars or more, a major increase
in costs or prices, or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets. Therefore, this final rule
is not a ‘‘major rule’’ as defined in 5
U.S.C. 804(2).
K. Unfunded Mandates Reform Act of
1995
The changes in this final rule do not
involve a Federal intergovernmental
mandate that will result in the
expenditure by State, local, and tribal
governments, in the aggregate, of 100
million dollars (as adjusted) or more in
any one year, or a Federal private sector
mandate that will result in the
expenditure by the private sector of 100
million dollars (as adjusted) or more in
any one year, and will not significantly
or uniquely affect small governments.
Therefore, no actions are necessary
under the provisions of the Unfunded
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Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
Mandates Reform Act of 1995. See 2
U.S.C. 1501 et seq.
L. National Environmental Policy Act
This rulemaking will not have any
effect on the quality of environment and
is thus categorically excluded from
review under the National
Environmental Policy Act of 1969. See
42 U.S.C. 4321 et seq.
M. National Technology Transfer and
Advancement Act
The requirements of section 12(d) of
the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) are inapplicable because this
rulemaking does not contain provisions
which involve the use of technical
standards.
N. Paperwork Reduction Act
This final rule involves information
collection requirements which are
subject to review by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
The collections of information
involved in this final rule have been
reviewed and approved by OMB. The
Office is not resubmitting information
collection requests to OMB for its
review and approval at this time but
will update the fee amounts for existing
information collection requirements
associated with the information
collections under OMB control numbers
0651–0016, 0651–0021, 0651–0024,
0651–0031, 0651–0032, 0651–0033,
0651–0063, and 0651–0064. The USPTO
will submit to OMB fee revision changes
for OMB control numbers 0651–0016,
0651–0021, 0651–0024, 0651–0031,
0651–0032, 0651–0033, 0651–0063, and
0651–0064 at the time these collections
are submitted to OMB for renewal.
Notwithstanding any other provision
of law, no person is required to respond
to, nor shall a person be subject to a
penalty for failure to comply with, a
collection of information subject to the
requirements of the Paperwork
Reduction Act, unless that collection of
information displays a currently valid
OMB control number.
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List of Subjects
37 CFR Part 1
Administrative practice and
procedure, Courts, Freedom of
information, Inventions and patents,
Reporting and record keeping
requirements, Small businesses.
37 CFR Part 41
Administrative practice and
procedure, Inventions and patents,
Lawyers.
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For the reasons set forth in the
preamble, 37 CFR parts 1 and 41 are to
be amended as follows:
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(b)(2).
2. Section 1.16 is amended by revising
paragraphs (a) through (e), (h) through
(j), and (o) through (s) to read as follows:
■
§ 1.16 National application filing, search,
and examination fees.
(a) Basic fee for filing each application
under 35 U.S.C. 111 for an original
patent, except design, plant, or
provisional applications:
(1) For an application filed on or after
December 8, 2004:
By a small entity (§ 1.27(a)) if
the application is submitted
in compliance with the Office electronic filing system
(§ 1.27(b)(2)):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$98.00
$195.00
$390.00
(b) Basic fee for filing each
application for an original design
patent:
(1) For an application filed on
or after December 8, 2004:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
(c) Basic fee for filing each application
for an original plant patent:
(1) For an application filed on
or after December 8, 2004:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
(d) Basic fee for filing each
provisional application:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
(e) Basic fee for filing each application
for the reissue of a patent:
(1) For an application filed on
or after December 8, 2004:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
§ 1.75(c) indicates how multiple
dependent claims are considered for fee
calculation purposes):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$195.00
$390.00
$31.00
$62.00
(j) In addition to the basic filing fee in
an application, other than a provisional
application, that contains, or is
amended to contain, a multiple
dependent claim, per application:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$230.00
$460.00
*
*
*
*
*
(o) Examination fee for each
application filed under 35 U.S.C. 111 on
or after December 8, 2004, for an
original patent, except design, plant, or
provisional applications:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
(p) Examination fee for each
application filed on or after December 8,
2004, for an original design patent:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$80.00
$160.00
(q) Examination fee for each
application filed on or after December 8,
2004, for an original plant patent:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
54365
$100.00
$200.00
(r) Examination fee for each
application filed on or after December 8,
2004, for the reissue of a patent:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$380.00
$760.00
(s) Application size fee for any
application under 35 U.S.C. 111 filed on
or after December 8, 2004, the
specification and drawings of which
exceed 100 sheets of paper, for each
additional 50 sheets or fraction thereof:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$160.00
$320.00
*
*
*
*
*
3. Section 1.17 is amended by revising
paragraphs (a), (l), and (m) to read as
follows:
■
§ 1.17 Patent application and
reexamination processing fees.
*
(a) Extension fees pursuant to
§ 1.136(a):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
(1) For reply within first
month:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
(2) For reply within second
month:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
(3) For reply within third
month:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
(4) For reply within fourth
month:
By a small entity (§ 1.27(a)) ......
*
*
*
*
(h) In addition to the basic filing fee
in an application, other than a
provisional application, for filing or
later presentation at any other time of
each claim in independent form in
excess of 3:
$125.00
$250.00
(i) In addition to the basic filing fee
in an application, other than a
provisional application, for filing or
later presentation at any other time of
each claim (whether dependent or
independent) in excess of 20 (note that
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$75.00
$150.00
$285.00
$570.00
$645.00
$1,290.00
$1,005.00
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By other than a small entity .....
(5) For reply within fifth
month:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$2,010.00
$1,365.00
$2,730.00
*
*
*
*
*
(l) For filing a petition for the revival
of an unavoidably abandoned
application under 35 U.S.C. 111, 133,
364, or 371, for the unavoidably delayed
payment of the issue fee under 35 U.S.C.
151, or for the revival of an unavoidably
terminated reexamination proceeding
under 35 U.S.C. 133 (§ 1.137(a)):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$315.00
$630.00
(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) (§ 1.137(b)):
dependent or independent) in excess of
20 and also in excess of the number of
claims in the patent under
reexamination (note that § 1.75(c)
indicates how multiple dependent
claims are considered for fee calculation
purposes):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$31.00
$62.00
*
*
*
*
*
(d) For filing each statutory disclaimer
(§ 1.321):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$80.00
$160.00
(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 being due by
three years and six months after the
original grant:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$575.00
$1,150.00
*
*
*
*
*
4. Section 1.18 is amended by revising
paragraphs (a) through (c) to read as
follows:
(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 being due by
seven years and six months after the
original grant:
§ 1.18 Patent post allowance (including
issue) fees.
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
(a) Issue fee for issuing each original
patent, except a design or plant patent,
or for issuing each reissue patent:
(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 being due
by eleven years and six months after the
original grant:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$945.00
$1,890.00
$885.00
$1,770.00
(b) Issue fee for issuing an original
design patent:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$505.00
$1,010.00
$695.00
$1,390.00
*
*
*
*
*
5. Section 1.20 is amended by revising
paragraphs (c)(3), (c)(4), and (d) through
(g) to read as follows:
■
§ 1.20
Post issuance fees.
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*
*
*
*
*
(c) * * *
(3) For filing with a request for
reexamination or later presentation at
any other time of each claim in
independent form in excess of 3 and
also in excess of the number of claims
in independent form in the patent under
reexamination:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
(4) For filing with a request for
reexamination or later presentation at
any other time of each claim (whether
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$2,405.00
$4,810.00
*
(c) Issue fee for issuing an original
plant patent:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$1,450.00
$2,900.00
*
*
*
*
6. Section 1.492 is amended by
revising paragraphs (a), (b)(3), (b)(4),
(c)(2), (d) through (f) and (j) to read as
follows:
§ 1.492
*
*
*
*
*
(a) The basic national fee for an
international application entering the
national stage under 35 U.S.C. 371 if the
basic national fee was not paid before
December 8, 2004:
$195.00
$390.00
(b) * * *
(3) If an international search report on
the international application has been
prepared by an International Searching
Authority other than the United States
International Searching Authority and is
provided, or has been previously
communicated by the International
Bureau, to the Office:
By a small entity (§ 1.27(a)) ......
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$500.00
(4) In all situations not provided for
in paragraphs (b)(1), (b)(2), or (b)(3) of
this section:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$315.00
$630.00
(c) * * *
(2) In all situations not provided for
in paragraph (c)(1) of this section:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
(d) In addition to the basic national
fee, for filing or on later presentation at
any other time of each claim in
independent form in excess of 3:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$125.00
$250.00
(e) In addition to the basic national
fee, for filing or on later presentation at
any other time of each claim (whether
dependent or independent) in excess of
20 (note that § 1.75(c) indicates how
multiple dependent claims are
considered for fee calculation purposes):
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$31.00
$62.00
(f) In addition to the basic national
fee, if the application contains, or is
amended to contain, a multiple
dependent claim, per application:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$230.00
$460.00
*
*
*
*
*
(j) Application size fee for any
international application for which the
basic national fee was not paid before
December 8, 2004, the specification and
drawings of which exceed 100 sheets of
paper, for each additional 50 sheets or
fraction thereof:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$160.00
$320.00
PART 41—PRACTICE BEFORE THE
BOARD OF PATENT APPEALS AND
INTERFERENCES
7. The authority citation for 37 CFR
part 41 continues to read as follows:
■
National stage fees.
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
By other than a small entity .....
$250.00
Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21,
23, 32, 41, 134, 135.
8. Section 41.20 is amended by
revising paragraph (b) to read as follows:
■
§ 41.20
Fees.
*
*
*
*
*
(b) Appeal fees. (1) For filing a notice
of appeal from the examiner to the
Board:
By a small entity (§ 1.27(a) of
this title) .................................
By other than a small entity .....
$315.00
$630.00
(2) In addition to the fee for filing a
notice of appeal, for filing a brief in
support of an appeal:
By a small entity (§ 1.27(a) of
this title) .................................
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$315.00
Federal Register / Vol. 77, No. 172 / Wednesday, September 5, 2012 / Rules and Regulations
By other than a small entity .....
$630.00
(3) For filing a request for an oral
hearing before the Board in an appeal
under 35 U.S.C. 134:
By a small entity (§ 1.27(a)) ......
By other than a small entity .....
$630.00
$1,260.00
Dated: August 31, 2012.
Deborah S. Cohn,
Commissioner for Trademarks, United States
Patent and Trademark Office.
[FR Doc. 2012–21974 Filed 9–4–12; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 1
RIN 2900–AN95
Sharing Information Between the
Department of Veterans Affairs and the
Department of Defense
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
This document adopts as
final, without change, the interim final
rule published in the Federal Register
on October 20, 2011. This final rule
removes a Department of Veterans
Affairs (VA) regulatory restriction on the
sharing of certain medical information
with the Department of Defense (DoD)
that is not required by the applicable
statute and is inconsistent with the
intent and purpose of that statute.
DATES: Effective Date: September 5,
2012.
FOR FURTHER INFORMATION CONTACT:
Stephania Griffin, Veterans Health
Administration Privacy Officer
(10P2C1), Health Information
Governance, Office of Informatics and
Analytics, Veterans Health
Administration, Department of Veterans
Affairs, 810 Vermont Ave. NW.,
Washington, DC 20420, (704) 245–2492.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: Section
7332(a)(1) of title 38, United States
Code, affords special protection against
the disclosure of VA medical ‘‘[r]ecords
of the identity, diagnosis, prognosis, or
treatment of any patient or subject
which are maintained in connection
with the performance of any program or
activity (including education, training,
treatment, rehabilitation, or research)
relating to drug abuse, alcoholism or
alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell
anemia.’’ However, an exception in
section 7332(e) states: ‘‘The prohibitions
of this section shall not prevent any
interchange of records—(1) within and
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SUMMARY:
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17:01 Sep 04, 2012
Jkt 226001
among those components of [VA]
furnishing health care to veterans, or
determining eligibility for benefits
under this title; or (2) between such
components furnishing health care to
veterans and the Armed Forces.’’
VA implemented section 7332(e) in
38 CFR 1.461(c)(1); however, in so
doing, we imposed an additional
restriction on the scope of information
that may be exchanged between VA and
DoD, limiting it to only ‘‘information
pertaining to a person relating to a
period when such person is or was
subject to the Uniform Code of Military
Justice.’’ This restriction was narrower
than the statutory restriction, and it
impeded VA’s ability to share with DoD
important medical information
pertaining to veterans and to coordinate
their care and treatment. Further, the
restriction impeded VA’s ability to fully
engage in Presidential- and
Congressional-supported
interoperability initiatives with DoD,
such as electronic health record
initiatives. This regulatory limitation
was not intended to have these negative
results on VA’s ability to provide
comprehensive high-quality health care
to veterans and, where applicable, to
support DoD in similarly caring for
servicemembers and military retirees.
On October 20, 2011, VA published in
the Federal Register, at 76 FR 65133, an
interim final rule that amended 38 CFR
1.461(c)(1) to better conform to
authority granted to VA by Congress.
Interested persons were invited to
submit comments on or before
December 19, 2011, and we received a
total of 3 comments. All of the issues
raised by the commenters are addressed
below.
Two commenters stated general
concerns regarding access to electronic
medical records by DoD and the security
of those records from inappropriate
disclosure or access. VA is committed to
the appropriate protection, use, and
disclosure of information maintained
and exchanged by VA in the course of
official business and to ensuring the
security of that information. The
amendment to 38 CFR 1.461(c)(1) allows
VA to fulfill Congress’ clear intention
that VA and DoD engage in the
exchange of records, but does not affect
the requirement of 38 U.S.C. 7332(e)(2)
that limits VA disclosures to
components of DoD that are ‘‘furnishing
health care to veterans.’’ We do not
make any changes based on these
comments.
One commenter asserted that this
regulation would create a breach of
confidentiality by allowing DoD to
access a veteran’s health information
without authorization by the veteran.
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
54367
However, the commenter also agreed
that it is important that VA and DoD
have access to veterans’ medical
information to ensure continuity of care,
safety, and for the provision of benefits.
This regulation will ensure that this
access is provided for those reasons by
removing a specific restriction that was
not required by the statutory authority.
In addition, VA will continue to comply
with all other applicable laws and
regulations regarding access to medical
records, including those that limit the
use and disclosure of information to
specifically authorized disclosures. We
do not make any changes based on this
comment.
One commenter suggested that
additional language be included in the
final rule to prevent the misuse of
information ‘‘for unintended, alterative
[sic] purposes beyond medical care.’’
Otherwise, disclosure of information for
purposes other than medical care ‘‘may
deter veterans from seeking care and/or
disability compensation’’ from VA. The
suggested language focuses on the
intended use of the information
accessed under the rule. As we noted
above, the amendment to the rule
complies with the section 7332
limitations on the nature and purpose of
information to be disclosed. Health care
professionals, such as those accessing
information through this provision, are
already duty-bound to access health
information consistent with law and
professional standards. This rule does
not limit or otherwise affect the
enforcement of those laws and
professional standards. Because we
believe the suggested language is
redundant of existing protections and
because other laws and regulations
govern such use and disclosure, we
decline to further amend the regulation.
We do not make any changes based on
this comment.
Based on the rationale set forth here,
and in the interim final rule, we adopt
the interim final rule as a final rule
without any changes.
Effect of Rulemaking
The Code of Federal Regulations, as
revised by this final rule, represents the
exclusive legal authority on this subject.
No contrary rules or procedures are
authorized. All VA guidance will be
read to conform with this rulemaking if
possible or, if not possible, such
guidance is superseded by this
rulemaking.
Paperwork Reduction Act
This rule contains no collections of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3521).
E:\FR\FM\05SER1.SGM
05SER1
]]>Agencies
[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Rules and Regulations]
[Pages 54360-54367]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21974]
=======================================================================
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Parts 1 and 41
[PTO-C-2011-0007]
RIN 0651-AC55
CPI Adjustment of Patent Fees for Fiscal Year 2013
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Patent and Trademark Office (Office or
USPTO) is adjusting certain patent fee amounts for fiscal year 2013 to
reflect fluctuations in the Consumer Price Index (CPI). The patent
statute provides for the annual CPI adjustment of patent fees set by
statute to recover the higher costs associated with doing business as
reflected by the CPI.
DATES: This final rule is effective on October 5, 2012.
FOR FURTHER INFORMATION CONTACT: Gilda Lee by email at
Gilda.Lee@uspto.gov, by telephone at (571) 272-8698, or by fax at (571)
273-8698.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose: Section 41(f) of Title 35 of the United States Code
provides the USPTO with the authority to adjust certain statutory
patent fees to reflect fluctuations during the preceding twelve months
in the Consumer Price Index (CPI). The purpose of this provision is to
allow the USPTO to recover higher costs of providing services as
reflected by the CPI. This final rule sets forth which fees will be
adjusted and how the adjustment is calculated based on the current
fluctuation in the CPI over the twelve months preceding this notice.
Summary of Major Provisions: The USPTO is adjusting certain patent
fees in accordance with 35 U.S.C. 41(f), as amended by the Consolidated
Appropriations Act (Pub. L. 108-447, 118 Stat. 2809 (2004)) and the
Leahy-Smith America Invents Act (Pub. L. 112-29). The fee increase
helps the USPTO to meet its strategic goals and maintain effective and
efficient operation of the patent system.
Costs and Benefits: This rulemaking is not economically significant
as that term is defined in Executive Order 12866 (Sept. 30, 1993).
Background
Statutory Provisions: Patent fees are set by or under the authority
provided in 35 U.S.C. 41, 119, 120, 132(b), 156, 157(a), 255, 302, 311,
376, section 532(a)(2) of the Uruguay Round Agreements Act (URAA) (Pub.
L. 103-465, Sec. 532(a)(2), 108 Stat. 4809, 4985 (1994)), and section
4506 of the American Inventors Protection Act of 1999 (AIPA) (Pub. L.
106-113, 113 Stat. 1501, 1501A-565 (1999)). 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.
The USPTO published a notice proposing to adjust the patent fees
charged under 35 U.S.C. 41(a) and (b) for fiscal year 2013 to reflect
fluctuations in the CPI on May 14, 2012.
The fiscal year 2005 Consolidated Appropriations Act (section 801
of Division B) provided that 35 U.S.C. 41(a), (b), and (d) shall be
administered in a manner that revises patent application fees (35
U.S.C. 41(a)) and patent maintenance fees (35 U.S.C. 41(b)), and
provides for a separate filing fee (35 U.S.C. 41(a)), search fee (35
U.S.C. 41(d)(1)), and examination fee (35 U.S.C. 41(a)(3)) during
fiscal years 2005 and 2006. See Public Law 108-447, 118 Stat. 2809,
2924-30 (2004). The Omnibus Appropriations Act, 2009, extended the
patent and trademark fee provisions of the fiscal year 2005
Consolidated Appropriations Act through September 30, 2011. See Public
Law 112-4, 125 Stat. 6 (2011); Public Law 111-322, 124 Stat. 3518
(2010); Public Law 111-317, 124 Stat. 3454 (2010); Public Law 111-290,
124 Stat. 3063 (2010); Public Law 111-242, 124 Stat. 2607 (2010);
Public Law 111-224, 124 Stat. 2385 (2010); Public Law 111-117, 123
Stat. 3034 (2009); Public Law 111-8, 123 Stat. 524 (2009); Public Law
111-6, 123 Stat. 522 (2009); Public Law 111-5, 123 Stat. 115 (2009);
Public Law 110-329, 122 Stat. 3574 (2008); Public Law 110-161, 121
Stat. 1844 (2007); Public Law 110-149, 121 Stat. 1819 (2007); Public
Law 110-137, 121 Stat. 1454 (2007); Public Law 110-116, 121 Stat. 1295
(2007); Public Law 110-92, 121 Stat. 989 (2007); Public Law 110-5, 121
Stat. 8 (2007); Public Law 109-383, 120 Stat. 2678 (2006); Public Law
109-369, 120 Stat. 2642 (2006); and Public Law 109-289, 120 Stat. 1257
(2006). The Leahy-Smith America Invents Act, enacted September 16,
2011, codified the patent and trademark fee provisions of the fiscal
year 2005 Consolidated Appropriations Act.
Section 11 of the Leahy-Smith America Invents Act provides for a
surcharge of fifteen percent, rounded by standard arithmetic rules, on
all fees charged or authorized by 35 U.S.C. 41(a), (b), and (d)(1), as
well as by 35 U.S.C. 132(b). Section 11 of the Act provides that this
fifteen percent surcharge is effective ten days after the date of
enactment (i.e., September 26, 2011). Section 11 also provides that
this fifteen percent surcharge shall terminate, with respect to a fee
to which the surcharge applies, on the effective date of the setting or
adjustment of that fee pursuant to the exercise of the authority under
section 10 of the Act for the first time with respect to that fee.
Section 10 fee-setting will be implemented in a future separate
rulemaking.
As for this rulemaking, 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 Consumer Price Index over the previous twelve
months. If the annual change in CPI is one percent or less, no fee
adjustment for CPI fluctuations will be pursued.
This CPI increase will be implemented on October 1, 2012. This
interim increase in fees is necessary to allow the USPTO to meet its
strategic goals within the time frame outlined in the FY 2013
President's Budget. The interim fee increase is a bridge to provide
resources until the USPTO exercises its fee-setting authority and
develops a new fee structure that will provide sufficient financial
resources in the long term. An adequately funded USPTO will optimize
the administration of the U.S. intellectual property system, and
thereby move innovation to the marketplace more quickly, creating and
sustaining U.S. jobs and enhancing the health and living standards of
Americans.
Fee Adjustment Level: The patent statutory fees established by 35
U.S.C. 41(a) and (b) are adjusted to reflect the most recent
fluctuations occurring during the twelve-month period prior to
publication of the final rule implementing this CPI adjustment, as
measured by the Consumer Price Index for All Urban Consumers (CPI-U).
The Office of Management and Budget (OMB) has advised that in
calculating these fluctuations, the USPTO should use CPI-U data as
determined by the Secretary of Labor, which is found at
[[Page 54361]]
``https://www.bls.gov/cpi/''. In accordance with the above description
of the statutory fee adjustment, the USPTO is adjusting patent
statutory fee amounts based on the Administration's CPI-U for the
twelve-month period ending June 30, 2012.
The fees other than small entity patent statutory fees have been
adjusted based on the June 2011 to June 2012 annual CPI-U increase of
1.7%. These fee amounts were then rounded by applying standard
arithmetic rules so that the resulting amounts will be consistent 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 the
nearest even number so that any comparable small entity fee will be a
whole number. The small entity fee amounts are 50% of the other than
small entity fee amounts.
General Procedures: Any fee amount adjusted by the final rule that
is paid on or after the effective date of the fee adjustment enacted by
the final rule is subject to the new fees in effect. The amount of the
fee to be paid for a given item will be determined by the time of
filing of that item with the Office. The time of filing will be
determined either according to the date of receipt in the Office (37
CFR 1.6) 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 37 CFR 1.8.
Items for which a Certificate of Mailing or Transmission under 37 CFR
1.8 is not authorized include, for example, filing of 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 the USPTO 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, and examination fees:
Section 1.16, paragraphs (a) through (e), (h) through (j) and (o)
through (s), is revised to adjust fees established therein to reflect
fluctuations in the CPI-U. See Table 1.
37 CFR 1.17 Patent application and reexamination processing fees:
Section 1.17, paragraphs (a)(1) through (a)(5), (l), and (m), is
revised to adjust fees established therein to reflect fluctuations in
the CPI-U. See Table 1.
37 CFR 1.18 Patent post allowance (including issue) fees: Section
1.18, paragraphs (a) through (c), is revised to adjust fees established
therein to reflect fluctuations in the CPI-U. See Table 1.
37 CFR 1.20 Post issuance fees: Section 1.20, paragraphs (c)(3)-
(c)(4), and (d) through (g), is revised to adjust fees established
therein to reflect fluctuations in the CPI-U. See Table 1.
37 CFR 1.492 National stage fees: Section 1.492, paragraphs (a),
(c)(2), (d) through (f) and (j), is revised to adjust fees established
therein to reflect fluctuations in the CPI-U. See Table 1.
37 CFR 41.20 Fees: Section 41.20, paragraphs (b)(1) through (b)(3),
is revised to adjust fees established therein to reflect fluctuations
in the CPI-U. See Table 1.
Fee Amount Adjustments: Table 1 shows the adjusted patent statutory
fee amounts and fee adjustments based on the June 2011 to June 2012
annual CPI-U increase of 1.7%. The other than small entity fee amounts
have been adjusted by 1.7%. These fee amounts were then rounded by
applying standard arithmetic rules. 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 the nearest even number. The small entity fee amounts
are 50% of the large entity fee amounts.
Table 1--Fee Adjustment Calculations Based on CPI-U Adjustment of 1.7%
----------------------------------------------------------------------------------------------------------------
37 CFR Fee title Current fee amount New fee amount Fee adjustment
----------------------------------------------------------------------------------------------------------------
1.16(a)(1)......... Filing of Utility $380 $390 $10
Patent Small Entity SE $195 SE $5
Application (on (SE) $190
or after 12/8/
2004).
1.16(a)(1)......... Filing of Utility $95 $98 $3
Patent
Application
(electronic
filing for small
entities) (on or
after 12/8/2004).
1.16(b)(1)......... Filing of Design $250 $250 $0
Patent SE $125 SE $125 SE $0
Application (on
or after 12/8/
2004).
1.16(b)(1)......... Filing of Design $250 $250 $0
Patent SE $125 SE $125 SE $0
Application
(Continued
Prosecution
Application) (on
or after 12/8/
2004).
1.16(c)(1)......... Filing of Plant $250 $250 $0
Patent SE $125 SE $125 SE $0
Application (on
or after 12/8/
2004).
1.16(d)............ Provisional $250 $250 $0
Application SE $125 SE $125 SE $0
Filing.
1.16(e)(1)......... Filing of Reissue $380 $390 $10
Patent SE $190 SE $195 SE $5
Application (on
or after 12/8/
2004).
1.16(e)(1)......... Filing of Reissue $380 $390 $10
Patent SE $190 SE $195 SE $5
Application (CPA)
(on or after 12/8/
2004).
1.16(h)............ Independent Claims $250 $250 $0
in Excess of SE $125 SE $125 SE $0
Three.
1.16(h)............ Reissue $250 $250 $0
Independent SE $125 SE $125 SE $0
Claims in Excess
of Three.
1.16(i)............ Claims in Excess $60 $62 $2
of Twenty. SE $30 SE $31 SE $1
1.16(i)............ Reissue Total $60 $62 $2
Claims in Excess SE $30 SE $31 SE $1
of Twenty.
1.16(j)............ Multiple Dependent $450 $460 $10
Claims. SE $225 SE $230 SE $5
[[Page 54362]]
1.16(o)............ Utility Patent $250 $250 $0
Examination. SE $125 SE $125 SE $0
1.16(p)............ Design Patent $160 $160 $0
Examination. SE $80 SE $80 SE $0
1.16(q)............ Plant Patent $200 $200 $0
Examination. SE $100 SE $100 SE $0
1.16(r)............ Reissue Patent $750 $760 $10
Examination. SE $375 SE $380 SE $5
1.16(s)............ Utility $310 $320 $10
Application Size SE $155 SE $160 SE $5
Fee--For each
additional 50
sheets that
exceeds 100
sheets.
1.16(s)............ Design Application $310 $320 $10
Size Fee--For SE $155 SE $160 SE $5
each additional
50 sheets that
exceeds 100
sheets.
1.16(s)............ Plant Application $310 $320 $10
Size Fee--For SE $155 SE $160 SE $5
each additional
50 sheets that
exceeds 100
sheets.
1.16(s)............ Reissue $310 $320 $10
Application Size SE $155 SE $160 SE $5
Fee--For each
additional 50
sheets that
exceeds 100
sheets.
1.16(s)............ Provisional $310 $320 $10
Application Size SE $155 SE $160 SE $5
Fee--For each
additional 50
sheets that
exceeds 100
sheets.
1.17(a)(1)......... Extension for $150 $150 $0
Response within SE $75 SE $75 SE $0
First Month.
1.17(a)(2)......... Extension for $560 $570 $10
Response within SE $280 SE $285 SE $5
Second Month.
1.17(a)(3)......... Extension for $1,270 $1,290 $20
Response within SE $635 SE $645 $10
Third Month.
1.17(a)(4)......... Extension for $1,980 $2,010 $30
Response within SE $990 SE $1,005 SE $15
Fourth Month.
1.17(a)(5)......... Extension for $2,690 $2,730 $40
Resonse within SE $1,345 SE $1,365 SE $20
Fifth Month.
1.17(l)............ Petition to Revive $620 $630 $10
Unavoidably SE $310 SE $315 SE $5
Abandoned
Application.
1.17(m)............ Petition to Revive $1,860 $1,890 $30
Unintentionally SE $930 SE $945 SE $15
Abandoned
Application.
1.18(a)............ Utility Issue..... $1,740 $1,770 $30
SE $870 SE $885 SE $15
1.18(a)............ Reissue Issue..... $1,740 $1,770 $30
SE $870 SE $885 SE $15
1.18(b)............ Design Issue...... $990 $1,010 $20
SE $495 SE $505 SE $10
1.18(c)............ Plant Issue....... $1,370 $1,390 $20
SE $685 SE $695 SE $10
1.20(c)(3)......... Reexamination $250 $250 $0
Independent SE $125 SE $125 SE $0
Claims in Excess
of Three.
1.20(c)(4)......... Reexamination $60 $62 $2
Total Claims in SE $30 SE $31 SE $1
Excess of Twenty.
1.20(d)............ Statutory $160 $160 $0
Disclaimer. SE $80 SE $80 SE $0
1.20(e)............ First Stage $1,130 $1,150 $20
Maintenance. SE $565 SE $575 SE $10
1.20(f)............ Second Stage $2,850 $2,900 $50
Maintenance. SE $1,425 SE $1,450 SE $25
1.20(g)............ Third Stage $4,730 $4,810 $80
Maintenance. SE $2,365 SE $2,405 SE $40
1.492(a)........... Filing of PCT $380 $390 $10
National Stage SE $190 SE $195 SE $5
Application.
1.492(b)(3)........ PCT National Stage $490 $500 $10
Search Search SE $245 SE $250 SE $5
Report Prepared
and Provided to
USPTO.
1.492(b)(4)........ PCT National Stage $620 $630 $10
Search--All Other SE $310 SE $315 SE $5
Situations.
1.492(c)(2)........ PCT National Stage $250 $250 $0
Examination--All SE $125 SE $125 SE $0
Other Situations.
1.492(d)........... Independent Claims $250 $250 $0
in Excess of SE $125 SE $125 SE $0
Three.
1.492(e)........... Total Claims in $60 $62 $2
Excess of Twenty. SE $30 SE $31 SE $1
1.492(f)........... Multiple Dependent $450 $460 $10
Claims. SE $225 SE $230 SE $5
1.492(j)........... PCT National Stage $310 $320 $10
Application Size SE $155 SE $160 SE $5
Fee.
41.20(b)(1)........ Notice of Appeal.. $620 $630 $10
SE $310 SE $315 SE $5
[[Page 54363]]
41.20(b)(2)........ Filing a Brief in $620 $630 $10
Support of an SE $310 SE $315 SE $5
Appeal.
41.20(b)(3)........ Request for Oral $1,240 $1,260 $20
Hearing. SE $620 SE $630 SE $10
----------------------------------------------------------------------------------------------------------------
Comment and Response to Comment: The USPTO published a notice
proposing to adjust the patent fees charged under 35 U.S.C. 41(a) and
(b) for fiscal year 2013 to reflect fluctuations in the CPI. The Office
received one comment in response to the proposed rule. The commenter
supports the proposed CPI adjustment of fees for FY 2013 as an interim
fee increase until the USPTO exercises its fee-setting authority under
Section 10 of the AIA. However, because of the significant
administrative burdens on corporations and patent law firms to adjust
their internal systems for paying fees and correctly advising clients
of fee increases, it is suggested there should not be more than one fee
adjustment per year. The commenter suggests that in future years, CPI
adjustments and Section 10 adjustments should be timed so as to avoid
having two separate adjustments in the same year. The Office's response
is patent fees are being set under 35 U.S.C. 41(a) and (b) to ensure
proper funding for effective operations. As previously discussed, this
interim increase in fees is necessary to allow the USPTO to meet its
strategic goals within the time frame outlined in the FY 2013
President's Budget. In the future, the USPTO does not anticipate
routinely adjusting patent fees more than once per fiscal year.
Rulemaking Considerations
Final Regulatory Flexibility Analysis
The Office has prepared the following Final Regulatory Flexibility
Analysis.
1. Description of the reasons that action by the agency is being
considered: The USPTO is adjusting the patent fees set under 35 U.S.C.
41(a) and (b) to ensure proper funding for effective operations. The
patent fee CPI adjustment under 35 U.S.C. 41(f) is a routine adjustment
that has generally occurred on an annual basis when necessary to
recover the higher costs of USPTO operations that occur due to the
increase in the price of products and services.
2. Statement of the objectives of, and legal basis for, the final
rule: Patent fees are set by or under the authority provided in 35
U.S.C. 41, 119, 120, 132(b), 156, 157(a), 255, 302, 311, 376, section
532(a)(2) of the URAA, and 4506 of the AIPA. The objective of the
change is to adjust patent fees set under 35 U.S.C. 41(a) and (b) as an
annual, routine step in order to recover the higher costs of USPTO
operations as reflected by the CPI. 35 U.S.C. 41(f) provides that fees
established under 35 U.S.C. 41(a) and (b) may be adjusted every year to
reflect fluctuations in the CPI over the previous twelve months.
3. Statement of Significant Issues Raised by the Public Comments in
Response to the IRFA and the Office's Response to Such Issues: The
Office received no comments concerning the Initial Regulatory
Flexibility Act analysis.
4. Description and estimate of the number of affected small
entities: The Small Business Administration (SBA) small business size
standards applicable to most analyses conducted to comply with the
Regulatory Flexibility Act are set forth in 13 CFR 121.201. These
regulations generally define small businesses as those with fewer than
a maximum number of employees or less than a specified level of annual
receipts for the entity's industrial sector or North American Industry
Classification System (NAICS) code. The USPTO, however, has formally
adopted, with SBA approval, an alternate size standard as the size
standard for the purpose of conducting an analysis or making a
certification under the Regulatory Flexibility Act for patent-related
regulations. See Business Size Standard for Purposes of United States
Patent and Trademark Office Regulatory Flexibility Analysis for Patent-
Related Regulations, 71 FR 67109 (Nov. 20, 2006), 1313 Off. Gaz. Pat.
Office 60 (Dec. 12, 2006). This alternate small business size standard
is the previously established size standard that identifies the
criteria entities must meet to be entitled to pay reduced patent fees.
See 13 CFR 121.802. If patent applicants identify themselves on the
patent application as qualifying for reduced patent fees, the USPTO
captures this data in the Patent Application Location and Monitoring
(PALM) database system, which tracks information on each patent
application submitted to the USPTO.
Unlike the general SBA small business size standards set forth in
13 CFR 121.201, USPTO's approved alternative size standard is not
industry-specific. Specifically, the USPTO definition of small business
concern for Regulatory Flexibility Act purposes is a business or other
concern that: (1) Meets the SBA's definition of a ``business concern or
concern'' set forth in 13 CFR 121.105; and (2) meets the size standards
set forth in 13 CFR 121.802 for the purpose of paying reduced patent
fees, namely, an entity: (a) Whose number of employees, including
affiliates, does not exceed 500 persons; and (b) which has not
assigned, granted, conveyed, or licensed (and is under no obligation to
do so) any rights in the invention to any person who made it and could
not be classified as an independent inventor, or to any concern which
would not qualify as a non-profit organization or a small business
concern under this definition. See Business Size Standard for Purposes
of United States Patent and Trademark Office Regulatory Flexibility
Analysis for Patent-Related Regulations, 71 FR at 67112 (November 20,
2006), 1313 Off. Gaz. Pat. Office at 63 (December 12, 2006).
The changes in this final rule will apply to any small entity that
files a patent application, or has a pending patent application or
unexpired patent. The changes in this final rule will specifically
apply when an applicant or patentee pays an application filing or
national stage entry fee, search fee, examination fee, extension of
time fee, notice of appeal fee, appeal brief fee, request for an oral
hearing fee, petition to revive fee, issue fee, or patent maintenance
fee.
The USPTO has been advised that a number of small entity applicants
and patentees do not claim small entity status for various reasons. See
Business Size Standard for Purposes of United States Patent and
Trademark Office Regulatory Flexibility Analysis for Patent-Related
Regulations, 71 FR at 67110 (November 20, 2006), 1313 Off. Gaz. Pat.
Office at 61 (December 12, 2006). Therefore, the USPTO is also
considering all other entities paying patent fees to be small entities
as well in an effort to capture the impact on all
[[Page 54364]]
small entity applicants whether they claim that status or not. While
the USPTO does not record the number of small entity filers in a given
year, the USPTO estimates that in FY 2011, of the patent fees where a
small entity discount is available, 3,980,519 patent fees were paid,
out of which 1,190,558 fees claimed the small entity discount.
5. Description of the reporting, recordkeeping and other compliance
requirements of the final rule, including an estimate of the classes of
small entities which will be subject to the requirement and the type of
professional skills necessary for preparation of the report or record:
This final rule does not require any reporting or recordkeeping or
incorporate other compliance requirements. This final rule only adjusts
patent fees (as discussed previously) to reflect changes in the CPI.
6. Description of any significant alternatives to the final rule
which accomplish the stated objectives of applicable statutes and which
minimize any significant economic impact of the rule on small entities:
The alternative of not adjusting patent fees would have a lesser
economic impact on small entities, but would not accomplish the stated
objectives of the applicable statutes. The USPTO is making a small
adjustment to patent fees, under 35 U.S.C. 41(f), to ensure proper
funding for effective operations in light of changes in the CPI. The
patent fee CPI adjustment is a routine adjustment that has generally
occurred on an annual basis to recover the higher costs of USPTO
operations that occur due to increases in the price of products and
services. This CPI adjustment helps the Office maintain effective
operations and decrease patent pendency levels.
7. Identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the final
rule: The USPTO is the sole agency of the United States Government
responsible for administering the provisions of Title 35, United States
Code, pertaining to examination and granting patents. Therefore, no
other Federal, state, or local entity shares jurisdiction over the
examination and granting of patents and there are no duplicative,
overlapping or conflicting rules.
Other countries, however, have their own patent laws, and an entity
desiring a patent in a particular country must make an application for
patent in that country, in accordance with the applicable law. Although
the potential for overlap exists internationally, this cannot be
avoided except by treaty (such as the Paris Convention for the
Protection of Industrial Property, or the Patent Cooperation Treaty
(PCT)). Nevertheless, the USPTO believes that there are no other
duplicative or overlapping rules.
B. Executive Order 13132 (Federalism)
This rulemaking does not contain policies with federalism
implications sufficient to warrant preparation of a Federalism
Assessment under Executive Order 13132 (Aug. 4, 1999).
C. Executive Order 12866 (Regulatory Planning and Review)
This rulemaking has been determined to be significant for purposes
of Executive Order 12866 (Sept. 30, 1993), as amended by Executive
Order 13258 (Feb. 26, 2002), and Executive Order 13422 (Jan. 18, 2007).
D. Executive Order 13563 (Improving Regulation and Regulatory Review)
The Office has complied with Executive Order 13563. Specifically,
the Office has, to the extent feasible and applicable: (1) Made a
reasoned determination that the benefits justify the costs of the rule;
(2) tailored the rule to impose the least burden on society consistent
with obtaining the regulatory objectives; (3) selected a regulatory
approach that maximizes net benefits; (4) specified performance
objectives; (5) identified and assessed available alternatives; (6)
involved the public in an open exchange of information and perspectives
among experts in relevant disciplines, affected stakeholders in the
private sector, and the public as a whole, and provided on-line access
to the rulemaking docket; (7) attempted to promote coordination,
simplification, and harmonization across government agencies and
identified goals designed to promote innovation; (8) considered
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public; and (9) ensured the objectivity of scientific
and technological information and processes.
E. Executive Order 13175 (Tribal Consultation)
This rulemaking will not: (1) Have substantial direct effects on
one or more Indian tribes; (2) impose substantial direct compliance
costs on Indian tribal governments; or (3) preempt tribal law.
Therefore, a tribal summary impact statement is not required under
Executive Order 13175 (Nov. 6, 2000).
F. Executive Order 13211 (Energy Effects)
This rulemaking is not a significant energy action under Executive
Order 13211 because this rulemaking is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Therefore, a Statement of Energy Effects is not required under
Executive Order 13211 (May 18, 2001).
G. Executive Order 12988 (Civil Justice Reform)
This rulemaking meets applicable standards to minimize litigation,
eliminate ambiguity, and reduce burden as set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).
H. Executive Order 13045 (Protection of Children)
This rulemaking does not concern an environmental risk to health or
safety that may disproportionately affect children under Executive
Order 13045 (Apr. 21, 1997).
I. Executive Order 12630 (Taking of Private Property)
This rulemaking will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630 (Mar.
15, 1988).
J. Congressional Review Act
Under the Congressional Review Act provisions of the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the
USPTO has submitted a report containing the final rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the Government
Accountability Office. The changes in this final rule will not result
in an annual effect on the economy of 100 million dollars or more, a
major increase in costs or prices, or significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets. Therefore, this final
rule is not a ``major rule'' as defined in 5 U.S.C. 804(2).
K. Unfunded Mandates Reform Act of 1995
The changes in this final rule do not involve a Federal
intergovernmental mandate that will result in the expenditure by State,
local, and tribal governments, in the aggregate, of 100 million dollars
(as adjusted) or more in any one year, or a Federal private sector
mandate that will result in the expenditure by the private sector of
100 million dollars (as adjusted) or more in any one year, and will not
significantly or uniquely affect small governments. Therefore, no
actions are necessary under the provisions of the Unfunded
[[Page 54365]]
Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.
L. National Environmental Policy Act
This rulemaking will not have any effect on the quality of
environment and is thus categorically excluded from review under the
National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.
M. National Technology Transfer and Advancement Act
The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are
inapplicable because this rulemaking does not contain provisions which
involve the use of technical standards.
N. Paperwork Reduction Act
This final rule involves information collection requirements which
are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The collections of information involved in this final rule have
been reviewed and approved by OMB. The Office is not resubmitting
information collection requests to OMB for its review and approval at
this time but will update the fee amounts for existing information
collection requirements associated with the information collections
under OMB control numbers 0651-0016, 0651-0021, 0651-0024, 0651-0031,
0651-0032, 0651-0033, 0651-0063, and 0651-0064. The USPTO will submit
to OMB fee revision changes for OMB control numbers 0651-0016, 0651-
0021, 0651-0024, 0651-0031, 0651-0032, 0651-0033, 0651-0063, and 0651-
0064 at the time these collections are submitted to OMB for renewal.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act, unless that collection of information
displays a currently valid OMB control number.
List of Subjects
37 CFR Part 1
Administrative practice and procedure, Courts, Freedom of
information, Inventions and patents, Reporting and record keeping
requirements, Small businesses.
37 CFR Part 41
Administrative practice and procedure, Inventions and patents,
Lawyers.
For the reasons set forth in the preamble, 37 CFR parts 1 and 41
are to be amended as follows:
PART 1--RULES OF PRACTICE IN PATENT CASES
0
1. The authority citation for 37 CFR Part 1 continues to read as
follows:
Authority: 35 U.S.C. 2(b)(2).
0
2. Section 1.16 is amended by revising paragraphs (a) through (e), (h)
through (j), and (o) through (s) to read as follows:
Sec. 1.16 National application filing, search, and examination fees.
(a) Basic fee for filing each application under 35 U.S.C. 111 for
an original patent, except design, plant, or provisional applications:
(1) For an application filed on or after December 8, 2004:
By a small entity (Sec. 1.27(a)) if the application is $98.00
submitted in compliance with the Office electronic filing
system (Sec. 1.27(b)(2)):
By a small entity (Sec. 1.27(a)).......................... $195.00
By other than a small entity................................ $390.00
(b) Basic fee for filing each application for an original design
patent:
(1) For an application filed on or after December 8, 2004:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(c) Basic fee for filing each application for an original plant
patent:
(1) For an application filed on or after December 8, 2004:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(d) Basic fee for filing each provisional application:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(e) Basic fee for filing each application for the reissue of a
patent:
(1) For an application filed on or after December 8, 2004:
By a small entity (Sec. 1.27(a)).......................... $195.00
By other than a small entity................................ $390.00
* * * * *
(h) In addition to the basic filing fee in an application, other
than a provisional application, for filing or later presentation at any
other time of each claim in independent form in excess of 3:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(i) In addition to the basic filing fee in an application, other
than a provisional application, for filing or later presentation at any
other time of each claim (whether dependent or independent) in excess
of 20 (note that Sec. 1.75(c) indicates how multiple dependent claims
are considered for fee calculation purposes):
By a small entity (Sec. 1.27(a)).......................... $31.00
By other than a small entity................................ $62.00
(j) In addition to the basic filing fee in an application, other
than a provisional application, that contains, or is amended to
contain, a multiple dependent claim, per application:
By a small entity (Sec. 1.27(a)).......................... $230.00
By other than a small entity................................ $460.00
* * * * *
(o) Examination fee for each application filed under 35 U.S.C. 111
on or after December 8, 2004, for an original patent, except design,
plant, or provisional applications:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(p) Examination fee for each application filed on or after December
8, 2004, for an original design patent:
By a small entity (Sec. 1.27(a)).......................... $80.00
By other than a small entity................................ $160.00
(q) Examination fee for each application filed on or after December
8, 2004, for an original plant patent:
By a small entity (Sec. 1.27(a)).......................... $100.00
By other than a small entity................................ $200.00
(r) Examination fee for each application filed on or after December
8, 2004, for the reissue of a patent:
By a small entity (Sec. 1.27(a)).......................... $380.00
By other than a small entity................................ $760.00
(s) Application size fee for any application under 35 U.S.C. 111
filed on or after December 8, 2004, the specification and drawings of
which exceed 100 sheets of paper, for each additional 50 sheets or
fraction thereof:
By a small entity (Sec. 1.27(a)).......................... $160.00
By other than a small entity................................ $320.00
* * * * *
0
3. Section 1.17 is amended by revising paragraphs (a), (l), and (m) to
read as follows:
Sec. 1.17 Patent application and reexamination processing fees.
(a) Extension fees pursuant to Sec. 1.136(a):
(1) For reply within first month:
By a small entity (Sec. 1.27(a)).......................... $75.00
By other than a small entity................................ $150.00
(2) For reply within second month:
By a small entity (Sec. 1.27(a)).......................... $285.00
By other than a small entity................................ $570.00
(3) For reply within third month:
By a small entity (Sec. 1.27(a)).......................... $645.00
By other than a small entity................................ $1,290.00
(4) For reply within fourth month:
By a small entity (Sec. 1.27(a)).......................... $1,005.00
[[Page 54366]]
By other than a small entity................................ $2,010.00
(5) For reply within fifth month:
By a small entity (Sec. 1.27(a)).......................... $1,365.00
By other than a small entity................................ $2,730.00
* * * * *
(l) For filing a petition for the revival of an unavoidably
abandoned application under 35 U.S.C. 111, 133, 364, or 371, for the
unavoidably delayed payment of the issue fee under 35 U.S.C. 151, or
for the revival of an unavoidably terminated reexamination proceeding
under 35 U.S.C. 133 (Sec. 1.137(a)):
By a small entity (Sec. 1.27(a)).......................... $315.00
By other than a small entity................................ $630.00
(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)).......................... $945.00
By other than a small entity................................ $1,890.00
* * * * *
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 patent, except a design or
plant patent, or for issuing each reissue patent:
By a small entity (Sec. 1.27(a)).......................... $885.00
By other than a small entity................................ $1,770.00
(b) Issue fee for issuing an original design patent:
By a small entity (Sec. 1.27(a)).......................... $505.00
By other than a small entity................................ $1,010.00
(c) Issue fee for issuing an original plant patent:
By a small entity (Sec. 1.27(a)).......................... $695.00
By other than a small entity................................ $1,390.00
* * * * *
0
5. Section 1.20 is amended by revising paragraphs (c)(3), (c)(4), and
(d) through (g) to read as follows:
Sec. 1.20 Post issuance fees.
* * * * *
(c) * * *
(3) For filing with a request for reexamination or later
presentation at any other time of each claim in independent form in
excess of 3 and also in excess of the number of claims in independent
form in the patent under reexamination:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(4) For filing with a request for reexamination or later
presentation at any other time of each claim (whether dependent or
independent) in excess of 20 and also in excess of the number of claims
in the patent under reexamination (note that Sec. 1.75(c) indicates
how multiple dependent claims are considered for fee calculation
purposes):
By a small entity (Sec. 1.27(a)).......................... $31.00
By other than a small entity................................ $62.00
* * * * *
(d) For filing each statutory disclaimer (Sec. 1.321):
By a small entity (Sec. 1.27(a)).......................... $80.00
By other than a small entity................................ $160.00
(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 being due by three years and
six months after the original grant:
By a small entity (Sec. 1.27(a)).......................... $575.00
By other than a small entity................................ $1,150.00
(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 being due by seven years and
six months after the original grant:
By a small entity (Sec. 1.27(a)).......................... $1,450.00
By other than a small entity................................ $2,900.00
(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 being due by eleven years
and six months after the original grant:
By a small entity (Sec. 1.27(a)).......................... $2,405.00
By other than a small entity................................ $4,810.00
* * * * *
6. Section 1.492 is amended by revising paragraphs (a), (b)(3),
(b)(4), (c)(2), (d) through (f) and (j) to read as follows:
Sec. 1.492 National stage fees.
* * * * *
(a) The basic national fee for an international application
entering the national stage under 35 U.S.C. 371 if the basic national
fee was not paid before December 8, 2004:
By a small entity (Sec. 1.27(a)).......................... $195.00
By other than a small entity................................ $390.00
(b) * * *
(3) If an international search report on the international
application has been prepared by an International Searching Authority
other than the United States International Searching Authority and is
provided, or has been previously communicated by the International
Bureau, to the Office:
By a small entity (Sec. 1.27(a)).......................... $250.00
By other than a small entity................................ $500.00
(4) In all situations not provided for in paragraphs (b)(1),
(b)(2), or (b)(3) of this section:
By a small entity (Sec. 1.27(a)).......................... $315.00
By other than a small entity................................ $630.00
(c) * * *
(2) In all situations not provided for in paragraph (c)(1) of this
section:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(d) In addition to the basic national fee, for filing or on later
presentation at any other time of each claim in independent form in
excess of 3:
By a small entity (Sec. 1.27(a)).......................... $125.00
By other than a small entity................................ $250.00
(e) In addition to the basic national fee, for filing or on later
presentation at any other time of each claim (whether dependent or
independent) in excess of 20 (note that Sec. 1.75(c) indicates how
multiple dependent claims are considered for fee calculation purposes):
By a small entity (Sec. 1.27(a)).......................... $31.00
By other than a small entity................................ $62.00
(f) In addition to the basic national fee, if the application
contains, or is amended to contain, a multiple dependent claim, per
application:
By a small entity (Sec. 1.27(a)).......................... $230.00
By other than a small entity................................ $460.00
* * * * *
(j) Application size fee for any international application for
which the basic national fee was not paid before December 8, 2004, the
specification and drawings of which exceed 100 sheets of paper, for
each additional 50 sheets or fraction thereof:
By a small entity (Sec. 1.27(a)).......................... $160.00
By other than a small entity................................ $320.00
PART 41--PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND
INTERFERENCES
0
7. The authority citation for 37 CFR part 41 continues to read as
follows:
Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134,
135.
0
8. Section 41.20 is amended by revising paragraph (b) to read as
follows:
Sec. 41.20 Fees.
* * * * *
(b) Appeal fees. (1) For filing a notice of appeal from the
examiner to the Board:
By a small entity (Sec. 1.27(a) of this title)............ $315.00
By other than a small entity................................ $630.00
(2) 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) of this title)............ $315.00
[[Page 54367]]
By other than a small entity................................ $630.00
(3) For filing a request for an oral hearing before the Board in an
appeal under 35 U.S.C. 134:
By a small entity (Sec. 1.27(a)).......................... $630.00
By other than a small entity................................ $1,260.00
Dated: August 31, 2012.
Deborah S. Cohn,
Commissioner for Trademarks, United States Patent and Trademark Office.
[FR Doc. 2012-21974 Filed 9-4-12; 8:45 am]
BILLING CODE 3510-16-P
