With last week’s passage of the Consolidated and Further Continuing Appropriations Act (H.R. 2112), the USPTO finally has its spending authority set through the end of the current fiscal year, September 30, 2012. The bottom line is that the USPTO can spend up to $2.7 billion, assuming it collects that much in “fees and surcharges.”
Here is the text of the relevant section of the Act:
For necessary expenses of the United States Patent and Trademark Office (USPTO) provided for by law, including defense of suits instituted against the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, $2,706,313,000 to remain available until expended:
Provided, That the sum herein appropriated from the general fund shall be reduced as offsetting collections of fees and surcharges assessed and collected by the USPTO under any law are received during fiscal year 2012, so as to result in a fiscal year 2012 appropriation from the general fund estimated at $0:
Provided further, That during fiscal year 2012, should the total amount of such offsetting collections be less than $2,706,313,000 this amount shall be reduced accordingly:
Provided further, That any amount received in excess of $2,706,313,000 in fiscal year 2012 and deposited in the Patent and Trademark Fee Reserve Fund shall remain available until expended:
Provided further, That the Director of USPTO shall submit a spending plan to the Committees on Appropriations of the House of Representatives and the Senate for any amounts made available by the preceding proviso and such spending plan shall be treated as a reprogramming under section 505 of this Act and shall not be available for obligation or expenditure except in compliance with the procedures set forth in that section:
Provided further, That from amounts provided herein, not to exceed $900 shall be made available in fiscal year 2012 for official reception and representation expenses:
Provided further, That in fiscal year 2012 from the amounts made available for ‘‘Salaries and Expenses’’ for the USPTO, the amounts necessary to pay (1) the difference between the percentage of basic pay contributed by the USPTO and employees under section 8334(a) of title 5, United States Code, and the normal cost percentage (as defined by section 8331(17) of that title) as provided by the Office of Personnel Management (OPM) for USPTO’s specific use, of basic pay, of employees subject to subchapter III of chapter 83 of that title, and (2) the present value of the otherwise unfunded accruing costs, as determined by OPM for USPTO’s specific use of post-retirement life insurance and post-retirement health benefits coverage for all USPTO employees who are enrolled in Federal Employees Health Benefits (FEHB) and Federal Employees Group Life Insurance (FEGLI), shall be transferred to the Civil Service Retirement and Disability Fund, the Employees Life Insurance Fund, and the Employees Health Benefits Fund, as appropriate, and shall be available for the authorized purposes of those accounts:
Provided further, That any differences between the present value factors published in OPM’s yearly 300 series benefit letters and the factors that OPM provides for USPTO’s specific use shall be recognized as an imputed cost on USPTO’s financial statements, where applicable:
Provided further, That, notwithstanding any other provision of law, all fees and surcharges assessed and collected by USPTO are available for USPTO only pursuant to section 42(c) of title 35, United States Code, as amended by section 22 of the Leahy-Smith America Invents Act (Public Law 112–29):
Provided further, That within the amounts appropriated, $1,000,000 shall be transferred to the ‘‘Office of Inspector General’’ account for activities associated with carrying out investigations and audits related to the USPTO.
According to the Intellectual Property Owners Association, this represents “full” funding for the USPTO, and should be regarded as good news for the patent community. As I have written previously, adequate USPTO funding is essential to the USPTO’s ability to address the patent application backlog and improve patent examination quality. The USPTO’s spending authority will be particularly crucial over the next few years as the USPTO implements patent reform under the America Invents Act (AIA). Indeed, this appropriations bill will take the USPTO just through the September 16, 2012 effective date of many provisions of the AIA, including the transition from inter partes reexamination in the Examining Division to inter partes review at the Patent Trial and Appeal Board.
I would like to know more about this limitation:
Provided further, That from amounts provided herein, not to exceed $900 shall be made available in fiscal year 2012 for official reception and representation expenses
Does this mean that the USPTO may not spend more than $900 on “official receptions,” e.g., USPTO-sponsored receptions? Or does it mean that the USPTO may not spend more than $900 on receptions for officials? And what are representation expenses? The only thing clear about this provision is that whatever activities it covers, Congress does not want the USPTO doing them much!