Joff Wild

PatentlyO has reproduced an email that David Kappos has written to USPTO staff outlining the severe financial restraints the office is operating under. This is a topic we have reported on recently, in particular the extraordinary decision made by Congress just before Christmas to deny the USPTO use of any monies it may raise this year in excess of the $1.87 billion it forecast it would receive last September.

In his email Kappos makes clear just how serious the situation is:

As part of the annual appropriations process, our financial team was asked to provide Congress with projected fee income for the 2010 fiscal year. This information was provided in September based on the data available at that time, when agency collections were at their low point. Congress used that projection of $1.887 billion in setting our budget for the 2010 fiscal year. That budget forces us to maintain operations on a bare-bones basis, but provides insufficient resources for us to replace employees who leave the agency, improve infrastructure or continue some of the improvements we have started to implement.

In addition, in the last two years, Congress had provided the USPTO a buffer of $100 million above our appropriation, which we were authorized to retain and spend to the extent fee income exceeded our appropriation (up to the $100 million buffer amount). That provision was removed from our fiscal year 2010 appropriation, due (we have been advised) to changes in Congressional Budget Office accounting which made it more difficult for our appropriators to provide the $100 million buffer this year. 

Kappos goes on to explain that it is vital the USPTO is able to hire staff not only to cover attrition rates but also to build numbers in order to attack the backlog. On top of this, there are also major IT issues that need to be dealt with. The implicaiton of his email is clear: if Congress does not relent and free up the extra funds the USPTO could well generate this year, things are not going to get better and could quite possibly get a whole lot worse. "For the current year, we have immediate and urgent funding needs that require short-term assistance," Kappos states.

When the Director of the USPTO is talking in this way and when the office's annual report also paints a bleak picture you can be sure that the situation is a dire one. What I find strange is that there seems to be so little anger in the wider US IP community - at least if its lobbying and advocacy organisations are anything to go by. For example, I had a look at the websites of both the Patent Fairness Coalition and the Coalition for 21st Century Patent Reform - both formed by a number of large corporations to lobby over the Patent Reform Act. There is absolutely no mention of the USPTO's financial woes and Congress's budget cuts on either one. 

The Coalition for Patent Fairness tells us that: "Dedicated patent examiners work hard to do the best work possible under difficult circumstances. But outmoded procedures, insufficient training, and lack of resources result in a substantial number of questionable patents being issued each year." So shouldn't it be up in arms about what is currently happening? Apparently not.

Equally, when Kappos was confirmed as USPTO Director last year Gary Griswold, chairman of the Coalition for 21st Century Patent Reform, stated: "I firmly believe that Dave Kappos will lead the US Patent and Trademark Office in a very thoughtful and effective way. His confirmation today is welcome news for members of our Coalition and all innovators, researchers and manufacturers. He will be an advocate for the innovative community and the protection of the nation's patents and advancements ... For many years, our Coalition's members have worked with him on intellectual property issues. He is a proven leader who fully understands the practical aspects of and opportunities provided by the patent system. We look forward to continuing this excellent relationship." But, it seems, not when it comes to fighting hard to make sure the USPTO gets to keep the money it makes. 

But it's not just these two big lobbying coalitions that are keeping mum. The AIPLA does not seem to have issued a press release condemning Congress's actions; while there is nothing that I can see on the ABA's intellectual property section's website to indicate it is in any way exercised by developments. But it's not just these two. I can't find anything on the IPO site either, or on the LES one. There is silence, too, over at AUTM.

I always had US industry and business groups down as being much more proactive than their European counterparts in fighting their corner when it comes to patents. But on this issue at least, it looks like they are making little if any noise. That puzzles me. Surely, all American-based users of the USPTO believe it should have the right to spend the money that it raises and surely they understand there is much more chance of this happening if members of the House and Senate hear loud an clear from a variety of voices that it is absolutely essential. Leaving David Kappos to do it all on his own is self-defeating. It also means that any future complaints about USPTO performance are going to sound extremely hollow.