I 

111TH CONGRESS 

2D SESSION H. R. 5322 

To provide authority to the Director of the United States Patent and Trademark Office to set or adjust patent and trademark fees, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 18, 2010 

Mr. CONYERS (for himself and Mr. SMITH of Texas) introduced the following 

bill; which was referred to the Committee on the Judiciary 

A BILL 

To provide authority to the Director of the United States 

Patent and Trademark Office to set or adjust patent 

and trademark fees, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Patent and Trademark 

5 Office Funding Stabilization Act of 2010’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) DIRECTOR.—The term ‘‘Director’’ means 

9 the Under Secretary of Commerce for Intellectual 


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1 Property and Director of the United States Patent 

2 and Trademark Office. 

3 (2) FUND.—The term ‘‘Fund’’ means the 

4 United States Patent and Trademark Office Public 

5 Enterprise Fund established under section 4(b). 

6 (3) OFFICE.—The term ‘‘Office’’ means the 

7 United States Patent and Trademark Office. 

8 (4) PATENT PUBLIC ADVISORY COMMITTEE.— 

9 The term ‘‘Patent Public Advisory Committee’’ 

10 means the Patent Public Advisory Committee estab11 lished under section 5(a)(1) of title 35, United 

12 States Code. 

13 (5) TRADEMARK ACT OF 1946.—The term 

14 ‘‘Trademark Act of 1946’’ means the Act entitled 

15 ‘‘Act to provide for the registration and protection 

16 of trademarks used in commerce, to carry out the 

17 provisions of certain international conventions, and 

18 for other purposes’’, approved July 5, 1946 (15 

19 U.S.C. 1051 et seq.) (commonly referred to as the 

20 ‘‘Trademark Act of 1946’’ or the ‘‘Lanham Act’’). 

21 (6) TRADEMARK PUBLIC ADVISORY COM22 MITTEE.—The term ‘‘Trademark Public Advisory 

23 Committee’’ means the Trademark Public Advisory 

24 Committee established under section 5(a)(1) of title 

25 35, United States Code. 


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1 SEC. 3. FEE SETTING AUTHORITY. 

2 (a) IN GENERAL.— 

3 (1) AUTHORITY.—The Director may set or ad4 just by rule any fee established or charged by the 

5 Office under section 41 or 376 of title 35, United 

6 States Code, or under section 31 of the Trademark 

7 Act of 1946 (15 U.S.C. 1113), or any other fee es8 tablished or charged by the Office under any other 

9 provision of law, for the filing or processing of any 

10 submission to the Office, or for any other service 

11 performed by or materials furnished by the Office, 

12 subject to paragraph (2). 

13 (2) FEES TO RECOVER COSTS.—Fees may be 

14 set or adjusted under paragraph (1) only to recover 

15 the aggregate estimated costs to the Office for proc16 essing, activities, services, and materials relating to 

17 patents (in the case of patent fees) and trademarks 

18 (in the case of trademark fees), including adminis19 trative costs of the Office with respect to such pat20 ent or trademark fees (as the case may be). 

21 (b) SMALL AND MICRO ENTITIES.—The fees set or 

22 adjusted under subsection (a) for filing, processing, 

23 issuing, and maintaining patent applications and patents 

24 shall be reduced by 50 percent with respect to the applica25 tion of such fees to any small entity that qualifies for re26 duced fees under section 41(h)(1) of title 35, United 


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1 States Code, and shall be reduced by 75 percent with re2 spect to the application of such fees to any micro entity 

3 as defined in section 123 of that title (as added by sub4 section (f) of this section). 

5 (c) REDUCTION OF FEES IN CERTAIN FISCAL

6 YEARS.—In each fiscal year, the Director— 

7 (1) shall consult with the Patent Public Advi8 sory Committee and the Trademark Public Advisory 

9 Committee on the advisability of reducing any fees 

10 described in subsection (a); and 

11 (2) after the consultation required under para12 graph (1), may reduce such fees. 

13 (d) ROLE OF THE PUBLIC ADVISORY COMMITTEE.— 

14 The Director shall— 

15 (1) not less than 45 days before publishing any 

16 proposed fee under subsection (a) in the Federal 

17 Register, submit the proposed fee to the Patent Pub18 lic Advisory Committee or the Trademark Public 

19 Advisory Committee, or both, as appropriate; 

20 (2)(A) provide the relevant advisory committee 

21 described in paragraph (1) a 30-day period following 

22 the submission of any proposed fee, on which to de23 liberate, consider, and comment on such proposal; 


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1 (B) require that, during such 30-day period, the 

2 relevant advisory committee hold a public hearing 

3 relating to such proposal; and 

4 (C) assist the relevant advisory committee in 

5 carrying out such public hearing, including by offer6 ing the use of the resources of the Office to notify 

7 and promote the hearing to the public and interested 

8 stakeholders; 

9 (3) require the relevant advisory committee to 

10 make available to the public a written report setting 

11 forth in detail the comments, advice, and rec12 ommendations of the committee regarding the pro13 posed fee; and 

14 (4) consider and analyze any comments, advice, 

15 or recommendations received from the relevant advi16 sory committee before setting or adjusting (as the 

17 case may be) the fee. 

18 (e) PUBLICATION IN THE FEDERAL REGISTER.— 

19 (1) PUBLICATION AND RATIONALE.—The Di20 rector shall— 

21 (A) publish any proposed fee change under 

22 this section in the Federal Register; 

23 (B) include, in such publication, the spe24 cific rationale and purpose for the proposal, inVerDate Mar 15 2010 06:21 May 19, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5322.IH H5322

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1 cluding the possible expectations or benefits re2 sulting from the proposed change; and 

3 (C) notify, through the Chair and Ranking 

4 Member of the Committees on the Judiciary of 

5 the Senate and the House of Representatives, 

6 the Congress of the proposed change not later 

7 than the date on which the proposed change is 

8 published under subparagraph (A). 

9 (2) PUBLIC COMMENT PERIOD.—The Director 

10 shall, in the publication under paragraph (1), pro11 vide the public a period of not less than 45 days in 

12 which to submit comments on the proposed change 

13 in fees. 

14 (3) PUBLICATION OF FINAL RULE.—The final 

15 rule setting or adjusting a fee under this section 

16 shall be published in the Federal Register and in the 

17 Official Gazette of the Patent and Trademark Of18 fice. 

19 (4) CONGRESSIONAL COMMENT PERIOD.—A fee 

20 set or adjusted under subsection (a) may not become 

21 effective before the end of the 45-day period begin22 ning on the day after the date on which the Director 

23 publishes the final rule adjusting or setting the fee 

24 under paragraph (3). 


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1 (5) RULE OF CONSTRUCTION.—Rules pre2 scribed under this section shall not diminish— 

3 (A) the rights of an applicant for a patent 

4 under title 35, United States Code, or for a 

5 trademark under the Trademark Act of 1946; 

6 or 

7 (B) any rights under a ratified treaty. 

8 (f) MICRO ENTITY DEFINED.— 

9 (1) IN GENERAL.—Chapter 11 of title 35, 

10 United States Code, is amended by adding at the 

11 end the following new section: 

12 ‘‘§ 123. Micro entity defined. 

13 ‘‘(a) IN GENERAL.—For purposes of this title, the 

14 term ‘micro entity’ means an applicant who makes a cer15 tification that the applicant— 

16 ‘‘(1) qualifies as a small entity, as defined in 

17 regulations issued by the Director; 

18 ‘‘(2) has not been named as an inventor on 

19 more than 4 previously filed patent applications, 

20 other than applications filed in another country, pro21 visional applications under section 111(b), or inter22 national applications filed under the treaty defined 

23 in section 351(a) for which the basic national fee 

24 under section 41(a) was not paid; 


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1 ‘‘(3) did not, in the calendar year preceding the 

2 calendar year in which the examination fee for the 

3 application is being paid, have a gross income, as de4 fined in section 61(a) of the Internal Revenue Code 

5 of 1986, exceeding 3 times the median household in6 come for that preceding calendar year, as reported 

7 by the Bureau of the Census; and 

8 ‘‘(4) has not assigned, granted, or conveyed, 

9 and is not under an obligation by contract or law to 

10 assign, grant, or convey, a license or other ownership 

11 interest in the application concerned to an entity 

12 that, in the calendar year preceding the calendar 

13 year in which the examination fee for the application 

14 is being paid, had a gross income, as defined in sec15 tion 61(a) of the Internal Revenue Code of 1986, ex16 ceeding 3 times the median household income for 

17 that preceding calendar year, as reported by the Bu18 reau of the Census. 

19 ‘‘(b) APPLICATIONS RESULTING FROM PRIOR EM20 PLOYMENT.—An applicant is not considered to be named 

21 on a previously filed application for purposes of subsection 

22 (a)(2) if the applicant has assigned, or is under an obliga23 tion by contract or law to assign, all ownership rights in 

24 the application as the result of the applicant’s previous 

25 employment. 


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1 ‘‘(c) FOREIGN CURRENCY EXCHANGE RATE.—If the 

2 gross income of an applicant or entity for a calendar year, 

3 for purposes of paragraph (3) or (4) of subsection (a), 

4 is reported in a currency other than United States dollars, 

5 the average exchange rate for that currency, as reported 

6 by the Internal Revenue Service, during that calendar year 

7 shall be used to determine whether the gross income ex8 ceeds the threshold specified in paragraph (3) or (4) of 

9 subsection (a).’’. 

10 (2) CONFORMING AMENDMENT.—Chapter 11 of 

11 title 35, United States Code, is amended by adding 

12 at the end the following new item: 

‘‘123. Micro entity defined.’’. 

13 (g) EFFECTIVE DATE; SUNSET.— 

14 (1) EFFECTIVE DATE.—This section and the 

15 amendments made by this section shall take effect 

16 on the date of the enactment of this Act. 

17 (2) SUNSET.— 

18 (A) IN GENERAL.—The authority to estab19 lish and adjust fees under subsection (a) shall 

20 terminate upon the expiration of the 10-year 

21 period beginning on the date of the enactment 

22 of this Act. 

23 (B) CLARIFICATION.—The termination of 

24 authority under subparagraph (A) does not 


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1 apply to the requirement and authority under 

2 subsection (c). 

3 SEC. 4. PATENT AND TRADEMARK OFFICE FUNDING. 

4 (a) FUNDING.— 

5 (1) IN GENERAL.—Section 42 of title 35, 

6 United States Code, is amended— 

7 (A) in subsection (b), by striking ‘‘Patent 

8 and Trademark Office Appropriation Account’’ 

9 and inserting ‘‘United States Patent and 

10 Trademark Office Public Enterprise Fund’’; 

11 and 

12 (B) in subsection (c), in the first sen13 tence— 

14 (i) by striking ‘‘To the extent’’ and all 

15 that follows through ‘‘fees’’ and inserting 

16 ‘‘Fees’’; and 

17 (ii) by striking ‘‘shall be collected by 

18 and shall be available to the Director’’ and 

19 inserting ‘‘shall be collected by the Direc20 tor and shall be available until expended’’. 

21 (2) EFFECTIVE DATE.— 

22 (A) IN GENERAL.—The amendments made 

23 by paragraph (1) shall take effect on October 1, 

24 2011. 


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1 (B) TERMINATION OF APPROPRIATION.— 

2 The provisions of any appropriation Act that— 

3 (i) are enacted before the effective 

4 date set forth in subparagraph (A), 

5 (ii) make amounts available pursuant 

6 to section 42(c) of title 35, United States 

7 Code, and 

8 (iii) are in effect on the effective date 

9 set forth in subparagraph (A), 

10 shall cease to be effective on that effective date, 

11 and any unexpended amounts made available 

12 pursuant to such section shall be transferred in 

13 accordance with subsection (b)(5). 

14 (b) USPTO REVOLVING FUND.— 

15 (1) ESTABLISHMENT.—There is established in 

16 the Treasury of the United States a revolving fund 

17 to be known as the ‘‘United States Patent and 

18 Trademark Office Public Enterprise Fund’’. Any 

19 amounts in the Fund shall be available for use by 

20 the Director without fiscal year limitation. 

21 (2) DERIVATION OF RESOURCES.—There shall 

22 be deposited into the Fund the following: 

23 (A) Any fees collected under sections 41, 

24 42, and 376 of title 35, United States Code. If 

25 such fees are collected by, and payable to, the 


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1 Director, the Director shall transfer such 

2 amounts to the Fund. 

3 (B) Any fees collected under section 31 of 

4 the Trademark Act of 1946 (15 U.S.C. 1113). 

5 (3) EXPENSES.—Amounts deposited into the 

6 Fund under paragraph (2) shall be available, with7 out fiscal year limitation, to cover— 

8 (A) all expenses, to the extent consistent 

9 with the limitation on the use of fees set forth 

10 in section 42(c) of title 35, United States Code 

11 (including all administrative and operating ex12 penses), that are determined in the discretion of 

13 the Director to be ordinary and reasonable and 

14 are incurred by the Director for the continued 

15 operation of all services, programs, activities, 

16 and duties of the Office, as such services, pro17 grams, activities, and duties are described 

18 under— 

19 (i) title 35, United States Code; and 

20 (ii) the Trademark Act of 1946; and 

21 (B) all expenses incurred pursuant to any 

22 obligation, representation, or other commitment 

23 of the Office. 

24 (4) CUSTODIANS OF MONEY.—Notwithstanding 

25 section 3302 of title 31, United States Code, any 


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1 funds received by the Director and transferred to 

2 Fund, or any amounts directly deposited into the 

3 Fund, may be used— 

4 (A) to cover the expenses described in 

5 paragraph (3); and 

6 (B) to purchase obligations of the United 

7 States, or any obligations guaranteed by the 

8 United States. 

9 (5) UNEXPENDED BALANCES.—Any unex10 pended balances in any accounts held on behalf of 

11 the Director, or the Office, including in the Patent 

12 and Trademark Office Appropriation Account in the 

13 Treasury of the United States, shall be transferred 

14 to the Fund and shall remain available until ex15 pended. 

16 (c) ANNUAL REPORT.—Not later than 60 days after 

17 the end of each fiscal year, the Director shall submit a 

18 report to Congress that— 

19 (1) summarizes the operations of the Office for 

20 the preceding fiscal year, including financial details 

21 and staff levels broken down by each major activity 

22 of the Office; 

23 (2) details the operating plan of the Office, in24 cluding specific expense and staff needs for the up25 coming fiscal year; 


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1 (3) describes the long-term modernization plans 

2 of the Office; 

3 (4) sets forth details of any progress towards 

4 such modernization plans made in the previous fiscal 

5 year; and 

6 (5) includes the results of the most recent audit 

7 carried out under subsection (e). 

8 (d) ANNUAL SPENDING PLAN.— 

9 (1) IN GENERAL.—Not later than 30 days after 

10 the beginning of each fiscal year, the Director shall 

11 notify the Committees on Appropriations of both 

12 Houses of Congress of the plan for the obligation 

13 and expenditure of the total amount of the funds for 

14 that fiscal year in a manner consistent with section 

15 605 of the Science, State, Justice, Commerce, and 

16 Related Agencies Appropriations Act, 2006 (Public 

17 Law 109–108; 119 Stat. 2334). 

18 (2) CONTENTS.—Each plan under paragraph 

19 (1) shall— 

20 (A) summarize the operations of the Office 

21 for the current fiscal year, including financial 

22 details and staff levels with respect to major ac23 tivities; and 


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1 (B) detail the operating plan of the Office, 

2 including specific expense and staff needs, for 

3 the current fiscal year. 

4 (e) AUDIT.—The Director shall, on an annual basis, 

5 provide for an independent audit of the financial state6 ments of the Office. Such audit shall be conducted in ac7 cordance with generally acceptable accounting procedures. 

8 (f) BUDGET.—In accordance with section 9301 of 

9 title 31, United States Code, the Fund shall prepare and 

10 submit each year to the President a business-type budget 

11 in such manner, and before such date, as the President 

12 prescribes by regulation for the budget program. 

13 (g) EFFECTIVE DATE.—Subsections (b) through (f) 

14 and this subsection shall take effect on October 1, 2011. 

15 SEC. 5. FEES FOR PATENT SERVICES. 

16 (a) GENERAL PATENT SERVICES.—Subsections (a) 

17 and (b) of section 41 of title 35, United States Code, is 

18 amended to read as follows: 

19 ‘‘(a) GENERAL FEES.—The Director shall charge the 

20 following fees: 

21 ‘‘(1) FILING AND BASIC NATIONAL FEES.— 

22 ‘‘(A) On filing each application for an 

23 original patent, except for design, plant, or pro24 visional applications, $330. 


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1 ‘‘(B) On filing each application for an 

2 original design patent, $220. 

3 ‘‘(C) On filing each application for an 

4 original plant patent, $220. 

5 ‘‘(D) On filing each provisional application 

6 for an original patent, $220. 

7 ‘‘(E) On filing each application for the re8 issue of a patent, $330. 

9 ‘‘(F) The basic national fee for each inter10 national application filed under the treaty de11 fined in section 351(a) entering the national 

12 stage under section 371, $330. 

13 ‘‘(G) In addition, excluding any sequence 

14 listing or computer program listing filed in an 

15 electronic medium as prescribed by the Direc16 tor, for any application the specification and 

17 drawings of which exceed 100 sheets of paper 

18 (or equivalent as prescribed by the Director if 

19 filed in an electronic medium), $270 for each 

20 additional 50 sheets of paper (or equivalent as 

21 prescribed by the Director if filed in an elec22 tronic medium) or fraction thereof. 

23 ‘‘(2) EXCESS CLAIMS FEES.— 

24 ‘‘(A) IN GENERAL.—In addition to the fee 

25 specified in paragraph (1)— 


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1 ‘‘(i) on filing or on presentation at 

2 any other time, $220 for each claim in 

3 independent form in excess of 3; 

4 ‘‘(ii) on filing or on presentation at 

5 any other time, $52 for each claim (wheth6 er dependent or independent) in excess of 

7 20; and 

8 ‘‘(iii) for each application containing a 

9 multiple dependent claim, $390. 

10 ‘‘(B) MULTIPLE DEPENDENT CLAIMS.— 

11 For the purpose of computing fees under sub12 paragraph (A), a multiple dependent claim re13 ferred to in section 112 or any claim depending 

14 therefrom shall be considered as separate de15 pendent claims in accordance with the number 

16 of claims to which reference is made. 

17 ‘‘(C) REFUNDS; ERRORS IN PAYMENT.— 

18 The Director may by regulation provide for a 

19 refund of any part of the fee specified in sub20 paragraph (A) for any claim that is canceled 

21 before an examination on the merits, as pre22 scribed by the Director, has been made of the 

23 application under section 131. Errors in pay24 ment of the additional fees under this paraVerDate Mar 15 2010 06:21 May 19, 2010 Jkt 089200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H5322.IH H5322

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1 graph may be rectified in accordance with regu2 lations prescribed by the Director. 

3 ‘‘(3) EXAMINATION FEES.— 

4 ‘‘(A) IN GENERAL.— 

5 ‘‘(i) For examination of each applica6 tion for an original patent, except for de7 sign, plant, provisional, or international 

8 applications, $220. 

9 ‘‘(ii) For examination of each applica10 tion for an original design patent, $140. 

11 ‘‘(iii) For examination of each applica12 tion for an original plant patent, $170. 

13 ‘‘(iv) For examination of the national 

14 stage of each international application, 

15 $220. 

16 ‘‘(v) For examination of each applica17 tion for the reissue of a patent, $650. 

18 ‘‘(B) APPLICABILITY OF OTHER FEE PRO19 VISIONS.—The provisions of paragraphs (3) and 

20 (4) of section 111(a) relating to the payment of 

21 the fee for filing the application shall apply to 

22 the payment of the fee specified in subpara23 graph (A) with respect to an application filed 

24 under section 111(a). The provisions of section 

25 371(d) relating to the payment of the national 


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1 fee shall apply to the payment of the fee speci2 fied in subparagraph (A) with respect to an 

3 international application. 

4 ‘‘(4) ISSUE FEES.— 

5 ‘‘(A) For issuing each original patent, ex6 cept for design or plant patents, $1,510. 

7 ‘‘(B) For issuing each original design pat8 ent, $860. 

9 ‘‘(C) For issuing each original plant pat10 ent, $1,190. 

11 ‘‘(D) For issuing each reissue patent, 

12 $1,510. 

13 ‘‘(5) DISCLAIMER FEE.—On filing each dis14 claimer, $140. 

15 ‘‘(6) APPEAL FEES.— 

16 ‘‘(A) On filing an appeal from the exam17 iner to the Board of Patent Appeals and Inter18 ferences, $540. 

19 ‘‘(B) In addition, on filing a brief in sup20 port of the appeal, $540, and on requesting an 

21 oral hearing in the appeal before the Board of 

22 Patent Appeals and Interferences, $1,080. 

23 ‘‘(7) REVIVAL FEES.—On filing each petition 

24 for the revival of an unintentionally abandoned ap25 plication for a patent, for the unintentionally delayed 


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1 payment of the fee for issuing each patent, or for an 

2 unintentionally delayed response by the patent owner 

3 in any reexamination proceeding, $1,620, unless the 

4 petition is filed under section 133 or 151, in which 

5 case the fee shall be $540. 

6 ‘‘(8) EXTENSION FEES.—For petitions for 1- 

7 month extensions of time to take actions required by 

8 the Director in an application— 

9 ‘‘(A) on filing a first petition, $130; 

10 ‘‘(B) on filing a second petition, $360; and 

11 ‘‘(C) on filing a third or subsequent peti12 tion, $620. 

13 ‘‘(b) MAINTENANCE FEES.— 

14 ‘‘(1) IN GENERAL.—The Director shall charge 

15 the following fees for maintaining in force all pat16 ents based on applications filed on or after Decem17 ber 12, 1980: 

18 ‘‘(A) 3 years and 6 months after grant, 

19 $980. 

20 ‘‘(B) 7 years and 6 months after grant, 

21 $2,480. 

22 ‘‘(C) 11 years and 6 months after grant, 

23 $4,110. 

24 ‘‘(2) GRACE PERIOD; SURCHARGE.—Unless pay25 ment of the applicable maintenance fee under paraVerDate Mar 15 2010 06:21 May 19, 2010 Jkt 089200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H5322.IH H5322

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1 graph (1) is received in the Office on or before the 

2 date the fee is due or within a grace period of 6 

3 months thereafter, the patent shall expire as of the 

4 end of such grace period. The Director may require 

5 the payment of a surcharge as a condition of accept6 ing within such 6-month grace period the payment 

7 of an applicable maintenance fee. 

8 ‘‘(3) NO MAINTENANCE FEE FOR DESIGN OR

9 PLANT PATENT.—No fee may be established for 

10 maintaining a design or plant patent in force.’’. 

11 (b) DELAYS IN PAYMENT.—Subsection (c) of section 

12 41 of title 35, United States Code, is amended— 

13 (1) by striking ‘‘(c)(1) The Director’’ and in14 serting: 

15 ‘‘(c) DELAYS IN PAYMENT OF MAINTENANCE

16 FEES.— 

17 ‘‘(1) ACCEPTANCE.—The Director’’. 

18 (2) by striking ‘‘(2) A patent’’ and inserting 

19 ‘‘(2) EFFECT ON RIGHTS OF OTHERS.—A patent’’; 

20 and 

21 (3) by moving the remaining text of paragraphs 

22 (1) and (2) 2 ems to the right. 

23 (c) PATENT SEARCH FEES.—Subsection (d) of sec24 tion 41 of title 35, United States Code, is amended to 

25 read as follows: 


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1 ‘‘(d) PATENT SEARCH AND OTHER FEES.— 

2 ‘‘(1) PATENT SEARCH FEES.— 

3 ‘‘(A) IN GENERAL.—The Director shall 

4 charge a fee for the search of each application 

5 for a patent, except for provisional applications. 

6 The Director shall establish the fees charged 

7 under this paragraph to recover an amount not 

8 to exceed the estimated average cost to the Of9 fice of searching applications for patent either 

10 by acquiring a search report from a qualified 

11 search authority, or by causing a search by Of12 fice personnel to be made, of each application 

13 for patent. 

14 ‘‘(B) SPECIFIC FEES.—For purposes of de15 termining the fees to be established under this 

16 paragraph, the cost to the Office of causing a 

17 search of an application to be made by Office 

18 personnel shall be deemed to be— 

19 ‘‘(i) $540 for each application for an 

20 original patent, except for design, plant, 

21 provisional, or international applications; 

22 ‘‘(ii) $100 for each application for an 

23 original design patent; 

24 ‘‘(iii) $330 for each application for an 

25 original plant patent; 


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1 ‘‘(iv) $540 for the national stage of 

2 each international application; and 

3 ‘‘(v) $540 for each application for the 

4 reissue of a patent. 

5 ‘‘(C) APPLICABILITY OF OTHER PROVI6 SIONS.—The provisions of paragraphs (3) and 

7 (4) of section 111(a) relating to the payment of 

8 the fee for filing the application shall apply to 

9 the payment of the fee specified in this para10 graph with respect to an application filed under 

11 section 111(a). The provisions of section 371(d) 

12 relating to the payment of the national fee shall 

13 apply to the payment of the fee specified in this 

14 paragraph with respect to an international ap15 plication. 

16 ‘‘(D) REFUNDS.—The Director may by 

17 regulation provide for a refund of any part of 

18 the fee specified in this paragraph for any ap19 plicant who files a written declaration of ex20 press abandonment as prescribed by the Direc21 tor before an examination has been made of the 

22 application under section 131, and for any ap23 plicant who provides a search report that meets 

24 the conditions prescribed by the Director. 


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1 ‘‘(E) REQUIREMENTS FOR SEARCHES.— 

2 The Director shall require that any search by a 

3 qualified search authority that is a commercial 

4 entity is conducted in the United States by per5 sons that— 

6 ‘‘(i) if individuals are United States 

7 citizens; and 

8 ‘‘(ii) if business concerns, are orga9 nized under the laws of the United States 

10 or any State and employ United States 

11 citizens to perform the searches. 

12 ‘‘(F) APPLICATIONS SUBJECT TO SECRECY

13 ORDER.—A search of an application that is the 

14 subject of a secrecy order under section 181 or 

15 otherwise involves classified information may 

16 only be conducted by Office personnel. 

17 ‘‘(G) CONFLICTS OF INTEREST.—A quali18 fied search authority that is a commercial enti19 ty may not conduct a search of a patent appli20 cation if the entity has any direct or indirect fi21 nancial interest in any patent or in any pending 

22 or imminent application for patent filed or to be 

23 filed in the Office. 

24 ‘‘(2) OTHER FEES.— 


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1 ‘‘(A) IN GENERAL.—The Director shall es2 tablish fees for all other processing, services, or 

3 materials relating to patents not specified in 

4 this section to recover the estimated average 

5 cost to the Office of such processing, services, 

6 or materials, except that the Director shall 

7 charge the following fees for the following serv8 ices: 

9 ‘‘(i) For recording a document affect10 ing title, $40 per property. 

11 ‘‘(ii) For each photocopy, $.25 per 

12 page. 

13 ‘‘(iii) For each black and white copy 

14 of a patent, $3. 

15 ‘‘(B) COPIES FOR LIBRARIES.—The yearly 

16 fee for providing a library specified in section 

17 12 with uncertified printed copies of the speci18 fications and drawings for all patents in that 

19 year shall be $50.’’. 

20 (d) FEES FOR SMALL ENTITIES.—Subsection (h) of 

21 section 41 of title 35, United States Code, is amended to 

22 read as follows: 

23 ‘‘(h) FEES FOR SMALL ENTITIES.— 

24 ‘‘(1) REDUCTIONS IN FEES.—Subject to para25 graph (3), fees charged under subsections (a), (b), 


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1 and (d)(1) shall be reduced by 50 percent with re2 spect to their application to any small business con3 cern as defined under section 3 of the Small Busi4 ness Act, and to any independent inventor or non5 profit organization as defined in regulations issued 

6 by the Director. 

7 ‘‘(2) SURCHARGES AND OTHER FEES.—With re8 spect to its application to any entity described in 

9 paragraph (1), any surcharge or fee charged under 

10 subsection (c) or (d) shall not be higher than the 

11 surcharge or fee required of any other entity under 

12 the same or substantially similar circumstances. 

13 ‘‘(3) REDUCTION FOR ELECTRONIC FILING.— 

14 The fee charged under subsection (a)(1)(A) shall be 

15 reduced by 75 percent with respect to its application 

16 to any entity to which paragraph (1) applies, if the 

17 application is filed by electronic means as prescribed 

18 by the Director.’’. 

19 (e) TECHNICAL AMENDMENTS.—Section 41 of title 

20 35, United States Code, is amended— 

21 (1) in subsection (e), in the first sentence, by 

22 striking ‘‘The Director’’ and inserting ‘‘WAIVER OF

23 FEES; COPIES REGARDING NOTICE.—The Direc24 tor’’; 


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1 (2) in subsection (f), by striking ‘‘The fees’’ 

2 and inserting ‘‘ADJUSTMENT OF FEES.—The fees’’; 

3 (3) by repealing subsection (g); and 

4 (4) in subsection (i)— 

5 (A) by striking ‘‘(i)(1) The Director’’ and 

6 inserting the following: 

7 ‘‘(i) ELECTRONIC PATENT AND TRADEMARK

8 DATA.— 

9 ‘‘(1) MAINTENANCE OF COLLECTIONS.—The 

10 Director’’; 

11 (B) by striking ‘‘(2) The Director’’ and in12 serting the following: 

13 ‘‘(2) AVAILABILITY OF AUTOMATED SEARCH

14 SYSTEMS.—The Director’’; 

15 (C) by striking ‘‘(3) The Director’’ and in16 serting the following: 

17 ‘‘(3) ACCESS FEES.—The Director’’; and 

18 (D) by striking ‘‘(4) The Director’’ and in19 serting the following: 

20 ‘‘(4) ANNUAL REPORT TO CONGRESS.—The Di21 rector’’. 

22 (f) ADJUSTMENT OF TRADEMARK FEES.—Section 

23 802(a) of division B of the Consolidated Appropriations 

24 Act, 2005 (Public Law 108–447)) is amended— 


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1 (1) in the first sentence, by striking ‘‘During 

2 fiscal years 2005, 2006 and 2007’’, and inserting 

3 ‘‘Until such time as the Director sets or adjusts the 

4 fees otherwise,’’; and 

5 (2) in the second sentence, by striking ‘‘During 

6 fiscal years 2005, 2006, and 2007, the’’ and insert7 ing ‘‘The’’. 

8 (g) EFFECTIVE DATE.—The amendments made by 

9 this section shall take effect on the date of the enactment 

10 of this Act. 

11 SEC. 6. TEMPORARY SURCHARGE. 

12 (a) SURCHARGE.—There shall be a surcharge of 15 

13 percent, rounded by standard arithmetic rules, on fees 

14 charged or authorized by sections 41(a), (b), (d)(1), and 

15 132(b) of title 35, United States Code, subject to the fol16 lowing: 

17 (1) The surcharge shall be separate from, and 

18 in addition to, any other surcharge that may be re19 quired pursuant to any provision of title 35, United 

20 States Code, or other provision of law. 

21 (2) The surcharge under this subsection shall 

22 take effect on the 10th day after the date of the en23 actment of this Act, and shall remain in effect 

24 through September 30, 2011. 


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1 (3) The receipts collected as a result of the sur2 charge under this subsection shall be available to the 

3 Office without fiscal year limitation, for all author4 ized activities and operations of the Office. 

5 (b) ELECTRONIC FILING INCENTIVE.— 

6 (1) IN GENERAL.—Notwithstanding any other 

7 provision of this section, the fee charged for each ap8 plication for an original patent, except for a design, 

9 plant, or provisional application, shall be increased 

10 by $400 for an application that is not filed by elec11 tronic means as prescribed by the Director. The fee 

12 established by this subsection shall be reduced 50 

13 percent for small entities that quality for reduced 

14 fees under section 41(h)(1) of title 35, United States 

15 Code. 

16 (2) EFFECTIVE DATE.—This subsection shall 

17 take effect upon the expiration of the 60-day period 

18 beginning on the date of the enactment of this Act. 

Æ 


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