IP Law Daily President signs bill extending USPTO’s fee-setting authority for eight years
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Friday, November 2, 2018

President signs bill extending USPTO’s fee-setting authority for eight years

By Thomas Long, J.D.

President Trump on Wednesday, October 31 signed into law H.R. 6758, the "Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018," or the "SUCCESS Act" The SUCCESS Act (Public Law 115-273) extends the authority of the USPTO to set patent and trademark fees for eight years. Both houses of Congress passed the measure unanimously.

The USPTO’s fee-setting authority had ended in September of this year, seven years after the enactment of the Leahy-Smith America Invents Act (AIA). Section 10(a) of the AIA provides that the Director of the USPTO may set or adjust by rule any fee established, authorized, or charged under the Patent Act or the Lanham Act for any services performed by or materials furnished by the Office, subject to the limitation that fees may be set or adjusted only to recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents and trademarks, including administrative costs. Section 10(i) contains a sunset provision for the USPTO’s fee-setting authority. As originally enacted, this authority was set to expire seven years after enactment of the AIA; the SUCCESS Act changes the termination date to 15 years after enactment of the AIA.

The legislation also includes a statement of the "sense of Congress" that "the United States has the responsibility to work with the private sector to close the gap in the number of patents applied for and obtained by women and minorities to harness the maximum innovative potential and continue to promote United States leadership in the global economy." In that connection, Section 3 of the SUCCESS Act requires the USPTO, in consultation with the Small Business Administration, to conduct a study and provide recommendations to Congress within one year on ways to increase the participation of women and minorities in entrepreneurship activities and the patent system. In a signing statement, the President stated that the administration will treat this provision in a manner consistent with Article II, section 3 of the Constitution, which provides the President the discretion to recommend to the Congress only "such measures as he shall judge necessary and expedient."

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