Joff Wild

Both the 271 blog and the Patent Prospector blog pick up on a recent vote in the US Senate condemning the practice of fee diversion from the USPTO. The vote was on an amendment to the Fiscal Year 2009 Budget Resolution and was sponsored by Orrin Hatch, who is also a prominent supporter of the Patent Reform Act.

“I believe this Sense of the Senate is the first step in acknowledging that Congress must act in short order to stop depriving the USPTO of funds it so desperately needs and give the paying applicants the quality and timeliness of service they are due,” Hatch said following the vote. “Considering the value of our nation’s intellectual property and its contribution to building a strong and vibrant economy, it is incomprehensible to siphon these funds away from their intended use, especially during these trying economic times.”

But until 2004, that is exactly what happened on a regular basis – the money that was generated by the USPTO was diverted to other branches of the government meaning that at crucial times in the growth of the US patent system, the office was deprived of funds. Among the results of this were fewer examiner hires and a growing backlog of patent applications. This is something that the office is having to deal with today.

Welcoming the Senate vote, the Patent Prospector blog goes on to say: “Fully funded, the only to-do item left unchecked is getting decent PTO management, a little trimming of the weeds that would pay huge dividends.” While not mentioning Jon Dudas by name, there is surely little doubt that the blog’s authors – who are frequent and forceful critics of the USPTO Director – had him in mind when they wrote that sentence. And, without doubt, they are not alone when voicing such sentiments. However, what the Patent Prospector and other Dudas critics fail to acknowledge is that fee diversion has ended on his watch. And if an end to diversion goes on to be mandated by law, as Hatch suggests may be the case, that will be a major achievement; there can be absolutely no doubt about that either.

Quite recently, this blog reported on a critique of US presidential candidates sent out by the highly-respected US commentator Hal Wegner. In his commentary, Wegner identified what he believed had to be the number one priority of the incoming president when it comes to patent policy: “A new Director for the PTO who is a knowledgeable expert can do wonders to turn around the patent ship of state: A President is needed who will understand the significance of this appointment and not treat the Under Secretary title as a fungible political plum to be treated like a FEMA-like appointment.” In other words Wegner believes that the next USPTO Director should have a strong patent background and should be appointed on this basis. Again, I am sure that Wegner speaks for a very sizeable part of the US patent community when he says this.

There are many reasons why I believe that Wegner may be wrong on this one – and I outlined them in that blog – but the recent Senate vote and the end to fee diversion since 2004 have to be two very strong arguments against his view. Jon Dudas may not be steeped in patent law, but he is steeped in politics and he knows how things work in Congress. I do not think it is a coincidence that fee diversion has ended at a time when he has been USPTO Director. Not only has Dudas played a key role in persuading legislators to see the USPTO as something more than a cash cow to support other federal agencies, he has also persuaded a President not noted for any interest in IP to give him his full backing. How many experts in US patent law and practice could have done that?

Now, this does not mean that Jon Dudas has not made major mistakes during his time at the USPTO or that he has not made significant misjudgements – I think that he has done both. But just because he has done things that practitioners do not like, they should not gloss over or ignore what has to be seen as a major success story. I have been a journalist covering IP since the early 1990s and for the first 12 or so years that I did it, one of the very biggest complaints I heard when I visited the US was about the practice of fee diversion and the damage this was doing. People don’t talk about that anymore. They should ask themselves why.