Each year, the USPTO raises patent fees, to reflect changes in the Consumer Price Index (CPI) for the 2007 Fiscal Year, starting October 1, 2006. Accordingly, there was a potential adjustment, based on the CPI Urban Consumer rate, of approximately 3.5%. While normally a straightforward process, there is a problem caused by the Consolidated Appropriations Act (CAA), 2005 which revised certain patent fees for FY 2005, 2006 to their present state.
By way of review, it was the CAA that implemented the current fee structure in which the examination, search, and filing fees are separated, and the extra claims fees were dramatically increased. However, the CAA only authorized these fees for these fiscal years, and is due to expire on September 30, 2006. If no extension has passed, therefore, the fee structure would revert to the fee structure existing prior to the CAA (i.e., prior to the December 4, 2004 fees being implemented). Thus, the there may be potentially a dramatic lowering of certain fees and an elimination of other fees.
In order to account for these contingencies and to allow a CPI increase for each contingency, the USPTO proposed a change the fees in the Federal Register, Vol. 71, No. 107. As such, there are pending two Options of fees: Option 1 will apply if the extension to the CAA is passed; and Option 2 will apply if the revisions are not in effect for any FY 2007 period.
Given the confusion and as Congress has yet to extend the CAA, the USPTO is anticipating that the CAA will be extended but has declined to add the CPI to the fees for FY 2007. As noted on the USPTO website, the USPTO’s current patent and trademark fee schedules “will continue in effect on October 1, 2006, and beyond.” However, it is likely that the USPTO will try and obtain a right to increase. According to the USPTO, “USPTO customers should monitor this website for any updated information.”