The U.S. government’s Fiscal Year 2011 (FY 2011) started Friday, October 1. The USPTO had a Fiscal Year 2010 (FY 2010) appropriation of $1.887 billion, yet with increased patent examination productivity, it estimates that its FY 2010 fees will exceed this appropriation by nearly $200 million. On August 10, President Obama signed a law authorizing the USPTO to spend an additional $129 million, still leaving an estimated $70 million more in fees for FY 2010 than the USPTO is authorized to spend.
To close that gap and allow the USPTO to spend its remaining $70 million in estimated fees, Congress would have had to act by the end of the day on Thursday, September 30. The Intellectual Property Owners Association (IPO) reports that such Congressional action would most likely have taken the form of an amendment to a continuing resolution to provide stop-gap funding for government agencies until Congress passes the FY 2011 appropriations bills. However, the IPO also correctly predicted, as did the USPTO, that such an amendment would not be included in the continuing resolution.
Instead, Congress’s continuing resolution, passed late on the evening of Wednesday, September 29, froze the USPTO’s FY 2011 budget at the level of the FY 2010 budget until the conclusion of the Congressional recess for November election campaigns. Congress will not pass a new budget to change these levels before December 3.
The USPTO has stated in press releases and presentations that it would spend additional funding on, among other things, increased and accelerated examiner hiring, examiner overtime, IT improvements, and improving USPTO processes. These investments would help to further reduce the USPTO backlog and decrease patent application pendency.
Congress’s decision regarding this $70 million funding gap may affect support for a provision in the budget bill, supported by the IPO, to add a 15% surcharge to USPTO fees. Given Congress’s apathy toward appropriating the remaining $70 million in application fees to the USPTO, those interested in the proposed 15% surcharge worry that the revenue from the surcharge might also never reach the USPTO. IPO support for the proposed surcharge is dependent on surcharge revenue going to the USPTO.