[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Proposed Rules]
[Pages 28331-28336]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11649]


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DEPARTMENT OF COMMERCE

United States 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: Notice of proposed rulemaking.

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SUMMARY: The United States Patent and Trademark Office (Office) is 
proposing to adjust 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: Written comments must be received on or before June 13, 2012. No 
public hearing will be held.

ADDRESSES: You may submit comments, identified by RIN number RIN 0651-
AC55, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: Gilda.Lee@uspto.gov. Include RIN number RIN 0651-
AC55 in the subject line of the message.
     Fax: (571) 273-8698, marked to the attention of Gilda Lee.
     Mail: Director of the United States Patent and Trademark 
Office, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the 
attention of Gilda Lee.
    Instructions: All submissions received must include the agency name 
and Regulatory Information Number (RIN) for this proposed rulemaking.
    The comments will be available for public inspection at the Office 
of the Chief Financial Officer, currently located in Madison West, 
Tenth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also 
will be available for viewing via the Office's Internet Web site 
(http://www.uspto.gov). Because comments will be made available for 
public inspection, information that the submitter does not desire to 
make public, such as an address or phone number, should not be included 
in the comments.

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.

[[Page 28332]]


SUPPLEMENTARY INFORMATION: 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. The USPTO proposes to adjust 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. This notice 
sets forth which fees will be adjusted and how the adjustment will be 
calculated based on the current fluctuation in the CPI over the twelve 
months preceding this notice. The actual adjustment will be calculated 
based on the fluctuation in the CPI over the twelve months preceding 
the date on which the final rule is published.

Background

    Statutory Provisions: As background concerning the patent fee 
structure, 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 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 Pub. L. 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.
    The USPTO proposes that this CPI increase 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 USPTO proposes that the patent statutory 
fees established by 35 U.S.C. 41(a) and (b) be 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 http://www.bls.gov/cpi/.
    In accordance with the above description of the statutory fee 
adjustment, the USPTO proposes to adjust patent statutory fee amounts 
based on the most recent annual increase in the CPI-U, as reported by 
the Secretary of Labor, at the time the final rule implementing this 
CPI adjustment is published. Proposed adjusted fee amounts are not 
included in this proposed rule in order to avoid confusion that could 
arise from using projected increases in the proposed rule that may not 
end up matching actual increases at the time of the final rule. Annual 
increases to the CPI-U are published monthly, and before the final fee 
amounts are published, the fee amounts may be adjusted based on actual 
fluctuations in the CPI-U. Adjusted patent statutory fee amounts based 
on the most recent annual increase in the CPI-U, as reported by the 
Secretary of Labor, will be published in a final rules notice.
    The fee amounts will be rounded by applying standard arithmetic 
rules so that the amounts rounded will be convenient to the user. Fees 
for other than a small entity of $100 or more will be rounded to the 
nearest $10. Fees of less than $100 will be rounded to an even number 
so that any comparable small entity fee will be a whole number.
    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 would be subject to the new fees then 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

[[Page 28333]]

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 proposed 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), if revised as proposed, would 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), if 
revised as proposed, would 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), if revised as proposed, would 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), if revised as proposed, would 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), if revised as proposed, would 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), 
if revised as proposed, would adjust fees established therein to 
reflect fluctuations in the CPI-U. See Table 1.
    Example of Fee Amount Adjustments: Adjusted patent statutory fee 
amounts based on the most recent annual increase in the CPI-U, as 
reported by the Secretary of Labor, will be published in the final rule 
implementing this CPI adjustment. Table 1 provides examples of possible 
fee adjustments based on the February 2011 to February 2012 annual CPI-
U increase of 2.9%.

                                   Table 1--Hypothetical Fee Adjustment Calculations Based on CPI-U Adjustment of 2.9%
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                                                                                           Hypothetical fee amount (2.9%
             37 CFR                     Fee title               Current fee amount                   increase)              Hypothetical fee adjustment
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1.16(a)(1).....................  Filing of Utility        $380..........................  $390..........................  $10.
                                  Patent Application (on  Small Entity (SE) $190........  SE $195.......................  SE $5.
                                  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 Patent  $250..........................  $260..........................  $10.
                                  Application (on or      SE $125.......................  SE $130.......................  SE $5.
                                  after 12/8/2004).
1.16(b)(1).....................  Filing of Design Patent  $250..........................  $260..........................  $10.
                                  Application (Continued  SE $125.......................  SE $130.......................  SE $5.
                                  Prosecution
                                  Application) (on or
                                  after 12/8/2004).
1.16(c)(1).....................  Filing of Plant Patent   $250..........................  $260..........................  $10.
                                  Application (on or      SE $125.......................  SE $130.......................  SE $5.
                                  after 12/8/2004).
1.16(d)........................  Provisional Application  $250..........................  $260..........................  $10.
                                  Filing.                 SE $125.......................  SE $130.......................  SE $5.
1.16(e)(1).....................  Filing of Reissue        $380..........................  $390..........................  $10.
                                  Patent Application (on  SE $190.......................  SE $195.......................  SE $5.
                                  or after 12/8/2004).
1.16(e)(1).....................  Filing of Reissue        $380..........................  $390..........................  $10.
                                  Patent Application      SE $190.......................  SE $195.......................  SE $5.
                                  (CPA) (on or after 12/
                                  8/2004).
1.16(h)........................  Independent Claims in    $250..........................  $260..........................  $10.
                                  Excess of Three.        SE $125.......................  SE $130.......................  SE $5.
1.16(h)........................  Reissue Independent      $250..........................  $260..........................  $10.
                                  Claims in Excess of     SE $125.......................  SE $130.......................  SE $5.
                                  Three.
1.16(i)........................  Claims in Excess of      $60...........................  $62...........................  $2.
                                  Twenty.                 SE $30........................  SE $31........................  SE $1.
1.16(i)........................  Reissue Total Claims in  $60...........................  $62...........................  $2.
                                  Excess of Twenty.       SE $30........................  SE $31........................  SE $1.
1.16(j)........................  Multiple Dependent       $450..........................  $460..........................  $10.
                                  Claims.                 SE $225.......................  SE $230.......................  SE $5.
1.16(o)........................  Utility Patent           $250..........................  $260..........................  $10.
                                  Examination.            SE $125.......................  SE $130.......................  SE $5.
1.16(p)........................  Design Patent            $160..........................  $160..........................  $0.
                                  Examination.            SE $80........................  SE $80........................  SE $0.
1.16(q)........................  Plant Patent             $200..........................  $210..........................  $10.
                                  Examination.            SE $100.......................  SE $105.......................  SE $5.
1.16(r)........................  Reissue Patent           $750..........................  $770..........................  $20.
                                  Examination.            SE $375.......................  SE $385.......................  SE $10.
1.16(s)........................  Utility Application      $310..........................  $320..........................  $10.
                                  Size Fee--For each      SE $155.......................  SE $160.......................  SE $5.
                                  additional 50 sheets
                                  that exceeds 100
                                  sheets.
1.16(s)........................  Design Application Size  $310..........................  $320..........................  $10.
                                  Fee--For each           SE $155.......................  SE $160.......................  SE $5.
                                  additional 50 sheets
                                  that exceeds 100
                                  sheets.

[[Page 28334]]

 
1.16(s)........................  Plant Application Size   $310..........................  $320..........................  $10.
                                  Fee--For each           SE $155.......................  SE $160.......................  SE $5.
                                  additional 50 sheets
                                  that exceeds 100
                                  sheets.
1.16(s)........................  Reissue Application      $310..........................  $320..........................  $10.
                                  Size Fee--For each      SE $155.......................  SE $160.......................  SE $5.
                                  additional 50 sheets
                                  that exceeds 100
                                  sheets.
1.16(s)........................  Provisional Application  $310..........................  $320..........................  $10.
                                  Size Fee--For each      SE $155.......................  SE $160.......................  SE $5.
                                  additional 50 sheets
                                  that exceeds 100
                                  sheets.
1.17(a)(1).....................  Extension for Response   $150..........................  $150..........................  $0.
                                  within First Month.     SE $75........................  SE $75........................  SE $0.
1.17(a)(2).....................  Extension for Response   $560..........................  $580..........................  $20.
                                  within Second Month.    SE $280.......................  SE $290.......................  SE $10.
1.17(a)(3).....................  Extension for Response   $1,270........................  $1,310........................  $40.
                                  within Third Month.     SE $635.......................  SE $655.......................  SE $20.
1.17(a)(4).....................  Extension for Response   $1,980........................  $2,040........................  $60.
                                  within Fourth Month.    SE $990.......................  SE $1,020.....................  SE $30.
1.17(a)(5).....................  Extension for Response   $2,690........................  $2,770........................  $80.
                                  within Fifth Month.     SE $1,345.....................  SE $1,385.....................  SE $40.
1.17(l)........................  Petition to Revive       $620..........................  $640..........................  $20.
                                  Unavoidably Abandoned   SE $310.......................  SE $320.......................  SE $10.
                                  Application.
1.17(m)........................  Petition to Revive       $1,860........................  $1,910........................  $50.
                                  Unintentionally         SE $930.......................  SE $955.......................  SE $25.
                                  Abandoned Application.
1.18(a)........................  Utility Issue..........  $1,740........................  $1,790........................  $50.
                                                          SE $870.......................  SE $895.......................  SE $25.
1.18(a)........................  Reissue Issue..........  $1,740........................  $1,790........................  $50.
                                                          SE $870.......................  SE $895.......................  SE $25.
1.18(b)........................  Design Issue...........  $990..........................  $1,020........................  $30.
                                                          SE $495.......................  SE $510.......................  SE $15.
1.18(c)........................  Plant Issue............  $1,370........................  $1,410........................  $40.
                                                          SE $685.......................  SE $705.......................  SE $20.
1.20(c)(3).....................  Reexamination            $250..........................  $260..........................  $10.
                                  Independent Claims in   SE $125.......................  SE $130.......................  SE $5.
                                  Excess of Three.
1.20(c)(4).....................  Reexamination Total      $60...........................  $62...........................  $2.
                                  Claims in Excess of     SE $30........................  SE $31........................  SE $1.
                                  Twenty.
1.20(d)........................  Statutory Disclaimer...  $160..........................  $160..........................  $0.
                                                          SE $80........................  SE $80........................  SE $0.
1.20(e)........................  First Stage Maintenance  $1,130........................  $1,160........................  $30.
                                                          SE $565.......................  SE $580.......................  SE $15.
1.20(f)........................  Second Stage             $2,850........................  $2,930........................  $80.
                                  Maintenance.            SE $1,425.....................  SE $1,465.....................  SE $40.
1.20(g)........................  Third Stage Maintenance  $4,730........................  $4,870........................  $140.
                                                          SE $2,365.....................  SE $2,435.....................  SE $70.
1.492(a).......................  Filing of PCT National   $380..........................  $390..........................  $10.
                                  Stage Application.      SE $190.......................  SE $195.......................  SE $5.
1.492(c)(2)....................  PCT National Stage       $250..........................  $260..........................  $10.
                                  Examination--All Other  SE $125.......................  SE $130.......................  SE $5.
                                  Situations.
1.492(d).......................  Independent Claims in    $250..........................  $260..........................  $10.
                                  Excess of Three.        SE $125.......................  SE $130.......................  SE $5.
1.492(e).......................  Total Claims in Excess   $60...........................  $62...........................  $2.
                                  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 Fee.   SE $155.......................  SE $160.......................  SE $5.
41.20(b)(1)....................  Notice of Appeal.......  $620..........................  $640..........................  $20.
                                                          SE $310.......................  SE $320.......................  SE $10.
41.20(b)(2)....................  Filing a Brief in        $620..........................  $640..........................  $20.
                                  Support of an Appeal.   SE $310.......................  SE $320.......................  SE $10.
41.20(b)(3)....................  Request for Oral         $1,240........................  $1,280........................  $40.
                                  Hearing.                SE $620.......................  SE $640.......................  SE $20.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Rulemaking Considerations

A. Initial Regulatory Flexibility Analysis

    1. Description of the reasons that action by the agency is being 
considered: The USPTO is proposing to adjust 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. Succinct statement of the objectives of, and legal basis for, 
the proposed rules: 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 proposed change is to adjust patent fees

[[Page 28335]]

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. 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 proposed 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 proposed 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 as well in an effort 
to capture the impact on all small entity applicants whether they claim 
that status or not.
    4. Description of the projected reporting, recordkeeping and other 
compliance requirements of the proposed rules, 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 notice does not propose any reporting, 
recordkeeping and other compliance requirements. This notice proposes 
only to adjust patent fees (as discussed previously) to reflect changes 
in the CPI.
    5. Description of any significant alternatives to the proposed 
rules which accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rules 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 applicable statutes. The USPTO is proposing 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.
    6. Identification, to the extent practicable, of all relevant 
Federal rules which may duplicate, overlap or conflict with the 
proposed rules: 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.
    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 (Jan. 8, 2011). 
Specifically, the Office has: (1) Used the best available techniques to 
quantify costs and benefits, and has considered values such as equity, 
fairness and distributive impacts; (2) provided the public with a 
meaningful opportunity to participate in the regulatory process, 
including soliciting the views of those likely affected, by issuing 
this notice of proposed rulemaking and providing on-line access to the 
rulemaking docket; (3) attempted to promote coordination, 
simplification and harmonization across government agencies and 
identified goals designed to promote innovation; (4) considered 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public; and (5)

[[Page 28336]]

ensured the objectivity of scientific and technological information and 
processes, to the extent applicable.

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 is not an economically significant rule and 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 affect 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.), 
prior to issuing any final rule, the USPTO will submit 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 proposed in this 
notice are not expected to 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 rulemaking is not likely to result in a 
``major rule'' as defined in 5 U.S.C. 804(2).

K. Unfunded Mandates Reform Act of 1995

    The changes proposed in this notice 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 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 proposed 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 proposed 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 because the changes proposed in this notice revise the fees 
for existing information collection requirements 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 if the 
changes proposed in this notice are adopted.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it 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 recordkeeping 
requirements, Small businesses.

37 CFR Part 41

    Administrative practice and procedure, Inventions and patents, 
Lawyers.

    Dated: May 8, 2012.
David J. Kappos,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2012-11649 Filed 5-11-12; 8:45 am]
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