Happy Anniversary!

Eleven years ago today, the Appropriations Committee beat back a floor amendment that sought to address patent fee diversion.  Here is a page from the Congressional Record from June 23, 2000.  The floor amendment was opposed by the then-CJS Subcommittee Chairman who assured the House, "The fees that are generated by the Patent Office are not used for any other agency or any other purpose. They remain in that account to be used in succeeding years. We are not siphoning off the Patent Office fees for other expenditures."
 
Over $300 million had been diverted from the U.S. Patent and Trademark Office over the previous two fiscal years and $120 million would be diverted during FY2000, the very year in which the Subcommittee Chairman gave these assurances (data available here).
 
The amendment was supported by the USPTO’s users including technology trade associations, patent lawyers, inventors, manufacturers, and the Clinton Administration.

Still, the appropriators prevailed, the proposed change to law addressing fee diversion was defeated, and fee diversion continued.
 
Sound familiar?  At the height of fee diversion, members of the Appropriations Committee asserted that fee diversion was not occurring.  Under the then-current law, the USPTO "account" held the excess fees and, according to the Congressional Record, defenders of the status quo acknowledged that to appropriate those excess fees would count against 302B allocations.

The new proposed trust fund in H.R. 1249 will likewise hold fees and, according to the Appropriations Committee, will not be available for any other purpose.  And assurances are again being made that diversion will not occur.   
 
The Innovation Alliance assumes the best of intentions by all of those working to pass patent legislation.  Yet, history is instructive.  H.R. 1249 does not end fee diversion, and  the promises being made today are non-binding and unenforceable.  

For these reasons, the Innovation Alliance urges a “no” vote on the Manager’s Amendment and on H.R. 1249.