The
United States Patent and Trademark Office (
PTO or
USPTO) is an agency in the
United States Department of Commerce that issues
patents to
inventors and businesses for their inventions, and
trademark registration for product and
intellectual property identification.
The USPTO is currently based in
Alexandria, Virginia, after a 2006 move from the
Crystal City area of
Arlington, Virginia. The offices under Patents and the Chief Information Officer that remained just outside the southern end of Crystal City completed moving to Randolph Square, a brand new building in
Shirlington Village, on April 27, 2009. Since 1991, the office has been fully funded by fees charged for processing patents and trademarks. The current head of the USPTO is
David J. Kappos, who was sworn in on August 13, 2009 following the
United States Senate's confirmation of his appointment by
President Barack Obama. He succeeded
John Doll, who served as acting head following the resignation of
Jon W. Dudas at the end of the
George W. Bush administration.
The USPTO cooperates with the
European Patent Office (EPO) and the
Japan Patent Office (JPO) as one of the
Trilateral Patent Offices. The USPTO is also a Receiving Office, an International Searching Authority and an International Preliminary Examination Authority for international patent applications filed in accordance with the
Patent Cooperation Treaty.
Mission
The legal basis for the United States patent system is Article 1, Section 8 of the
United States Constitution, wherein the powers of Congress are defined. It states, in part:
"The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The mission of the PTO is to promote "industrial and technological progress in the
United States and strengthen the national economy" by:
- administering the laws relating to patents and trademarks;
Structure
As of September 30, 2008, the end of the U.S. government's fiscal year, the PTO had 9,518 employees, nearly all of whom are based at its huge five-building headquarters complex in Alexandria. Of those, 6,055 were
patent examiners and 398 were
trademark examining attorneys; the rest are support staff.
The total employee count has risen from 8,189 at the end of fiscal year 2006; at the same time, there were 4,883 patent examiners and 413 trademark examiners.
Patent examiners are generally scientists and engineers who do not necessarily hold law degrees, while all trademark examiners must be licensed attorneys. All examiners work under a strict, "count"-based production system. For every application, "counts" are earned by composing, filing, and mailing a first Office action on the merits, and upon disposal of an application.
The Commissioner for Patents oversees three main bodies, headed by the Deputy Commissioner for Patent Operations, currently Peggy Focarino, the Deputy Commissioner for Patent Examination Policy, currently Andrew Hirshfeld as Acting Deputy, and finally the Commissioner for Patent Resources and Planning, which is currently vacant. The Patent Operations of the office is divided into 9 different technology centers that deal with various arts.
Decisions of patent examiners may be appealed to the
Board of Patent Appeals and Interferences, an
administrative law body of the USPTO. Decisions of the BPAI may further be appealed to the
United States Court of Appeals for the Federal Circuit, or a civil suit may be brought against the Commissioner of Patents in the
United States District Court for the District of Columbia. The
United States Supreme Court may ultimately decide on a patent case. Similarly, decisions of trademark examiners may be appealed to the
Trademark Trial and Appeal Board, with subsequent appeals directed to the Federal Circuit, or a civil action may also be brought.
In recent years, the USPTO has seen increasing delays between when a patent application is filed and when it issues. To address its workload challenges, the USPTO has undertaken an aggressive program of hiring and recruitment. The USPTO hired 1,193 new patent examiners In Fiscal Year 2006 (year ending September 30, 2006),
1,215 new examiners in fiscal 2007,
and 1,211 in fiscal year 2008.
The USPTO expected to continue hiring patent examiners at a rate of approximately 1,200 per year through 2012; however, due to a slowdown in new application filings since the onset of the
late-2000s economic crisis, and projections of substantial declines in
maintenance fees in coming years,
the agency imposed a hiring freeze in early March 2009.
In 2006, USPTO also instituted a new training program for patent examiners called the "Patent Training Academy." It is an eight-month program designed to teach new patent examiners the fundamentals of patent law, practice and examination procedure in a college-style environment. Because of the impending USPTO budget crisis previously alluded to, it had been rumored that the Academy would be closed by the end of 2009.
Focarino, then Acting Commissioner for Patents, denied in a May 2009 interview that the Academy was being shut down, but stated that it would be cut back because the hiring goal for new examiners in fiscal 2009 was reduced to 600.
Fee diversion
For many years,
Congress "diverted" about 10% of the fees that the USPTO has collected into the general treasury of the United States. In effect, this took money collected from the patent system to use for the general budget. This fee diversion has been generally opposed by patent practitioners (
e.g.,
patent attorneys and
patent agents),
inventors, and the USPTO. These stakeholders would rather use the funds to improve the patent office and patent system, such as by implementing the USPTO's 21st Century Strategic Plan. The last six annual budgets of the
George W. Bush administration did not divert any USPTO fees, and the first budget of the
Barack Obama administration continues this practice; however, stakeholders continue to press for a permanent end to fee diversion.
Patents
First United States patent
- The X-Patents (the first 10,280 issued between 1790 and 1836) were destroyed by a fire; fewer than 3,000 of those have been recovered and re-issued with numbers that include an "X". The X generally appears at the end of the numbers hand-written on full-page patent images; however, in patent collections and for search purposes, the X is considered to be the patent type — analogous to the "D" of design patents — and appears at the beginning of the number. The X distinguishes the patents from those issued after the fire, which began again with patent number 1.
- Each year, the PTO issues over 150,000 patents to companies and individuals worldwide. As of February 2008, the PTO has granted over 7,950,000 patents.
Trademarks
The USPTO examines applications for
trademark registration. If approved, the trademarks are registered on either the
Principal Register or the
Supplemental Register, depending upon whether the mark meets the appropriate distinctiveness criteria. However, this function is declining in popularity as trademark applicants move to cheaper, more straightforward state-by-state registrations.
Representation
The PTO only allows certain qualified persons to practice before the PTO.
Practice includes filing of patent applications on behalf of inventors, prosecuting patent applications on behalf of inventors, and participating in administrative appeals and other proceedings before the PTO examiners and boards. The PTO sets its own standards for who may practice and requires that any person who practices become registered. A patent agent is a person who has passed the
USPTO registration examination (the "patent bar") but has not passed any state bar exam to become a licensed attorney; a patent attorney is a person who has passed both a state bar and the patent bar and is in good standing as an attorney. A patent agent can only act in a representative capacity in patent matters presented to the USPTO, and may not represent a patent holder or applicant in a court of law. To be eligible for taking the patent bar exam, a candidate must possess a degree in "engineering or physical science or the equivalent of such a degree".
The United States allows any citizen from any country to sit for the patent bar (if he/she has the requisite technical background). Only Canada has a reciprocity agreement with the United States that confers upon a patent agent similar rights.
An unrepresented inventor may file a patent application and prosecute it on his or her own behalf (
pro se). If it appears to a patent examiner that an inventor filing a
pro se application is not familiar with the proper procedures of the Patent Office, the examiner may suggest that the filing party obtain representation by a registered patent attorney or patent agent. The patent examiner cannot recommend a specific attorney or agent, but the Patent Office does post a list of those who are registered.
While the inventor of a relatively simple-to-describe invention may well be able to produce an adequate specification and detailed drawings, there remains language complexity in what is
claimed, either in the particular claim language of a utility application, or in the manner in which drawings are presented in a design application. There is also skill required when searching for prior art that is used to support the application and to prevent applying for a patent for something that may be unpatentable. A patent examiner will make special efforts to help
pro se inventors understand the process but the failure to adequately understand or respond to an Office action from the USPTO can endanger the inventor's rights, and may lead to abandonment of the application.
Electronic filing system
The USPTO will accept patent applications filed in electronic form. As of March 2006, inventors or their patent agents/attorneys can file applications as
Adobe PDF documents. The web page for submitting applications is [https://sportal.uspto.gov/secure/portal/efs-unregistered https://sportal.uspto.gov/secure/portal/efs-unregistered]. Filing fees can be paid by credit card or by a USPTO “deposit account”.
Electronic retrieval system
The provides free electronic copies of issued patents and patent applications as multiple-page
TIFF (graphic) documents. The site also provides Boolean search and analysis tools.
The USPTO's free distribution service only distributes the patent documents as a set of TIFF files (see http://www.uspto.gov/patft/help/images.htm). Numerous free and commercial services provide patent documents in other formats, such as
Adobe PDF and
CPC.
Criticisms
The USPTO has been criticized for granting patents for impossible or absurd, already known, or arguably obvious inventions.
[ Philip E. Ross, , Forbes.com, May 29, 2000.]Controversial patents
- , "Method of exercising a cat", covers having a cat chase the beam from a laser pointer. The patent has been criticised as being obvious.
- , "Sealed crustless sandwich", issued in 1999, covers the design of a sandwich with crimped edges.
- , "Hyper-light-speed antenna", an antenna that sends signals faster than the speed of light.
- , "Method of swinging on a swing", issued April 9, 2002
- , "Space vehicle propelled by the pressure of inflationary vacuum state", describes an anti-gravity device. In November 2005, the USPTO was criticized by physicists for granting it. The journal Nature first highlighted this patent issued for a device that presumably amounts to a perpetual motion machine, defying the laws of physics. The device comprises a particular electrically superconducting shield and elecromagnetic generating device. The examiner allowed the claims because the design of the shield and device was novel and not obvious. In situations such as this where a substantial question of patentability is raised after a patent issues, the Commissioner of the Patent Office can order a reexamination of the patent.
Controversial trademarks
- , "Cloud Computing" for Dell, covering "custom manufacture of computer hardware for use in data centers and mega-scale computing environments for others", was allowed by a trademark attorney on July 8, 2008. Cloud computing is a generic term that could define technology infrastructure for years to come, which had been in general use at the time of the application. The application was rejected on August 12, 2008 as descriptive and generic.
- , "Netbook" for Psion, covering "laptop computers" was registered on November 21, 2000. Although the company discontinued the netBook line in November 2003 and allowed the trademark to become genericized through use by journalists and vendors (products marketed as 'netbooks' include the Dell Inspiron Mini Series, Asus eeePC, HP Mini 1000, MSI Wind Netbook and others), USPTO subsequently rejected a number of trademarks citing a "likelihood of confusion" under section 2(d), including 'G NETBOOK' ( rejected October 31, 2008), MSI's 'WIND NETBOOK' () and Coby Electronics' 'COBY NETBOOK' ( rejected January 13, 2009. Psion also delivered a batch of cease and desist letters on December 23, 2008 relating to the genericized trademark.
Slow patent examination and backlog
The USPTO has been criticized for taking an inordinate amount of time in examining patent applications. This is particularly true in the fast growing area of
business method patents. As of 2005, patent examiners in the business method area were still examining patent applications filed in 2001.
The delay has been attributed by spokesmen for the Patent Office to a combination of a sudden increase in business method patent filings after the 1998
State Street Bank decision, the unfamiliarity of patent examiners with the business and financial arts (
e.g., banking,
insurance, stock trading etc.), and the issuance of a number of controversial patents (
e.g., "
Amazon one click patent") in the business method area.
Effective in August 2006, the USPTO introduced an
accelerated patent examination procedure in an effort to allow inventors a speedy evaluation of an application with a final disposition within twelve months. The procedure requires additional information to be submitted with the application and also includes an interview with the examiner. The first accelerated patent was granted on March 15, 2007 with a 6 month issuance time.
As of the end of 2008, there were 1,208,076 patent applications pending at the Patent Office. At the end of 1997, the number of pending applications pending was 275,295. Therefore, over these 11 years there has been a 439% increase in the number of pending applications.
See also
References and notes
