You might remember that late last year, Congress passed the America Invents Act, a largely toothless law that fails to address many of the biggest problems facing the patent system. In implementing that new law, the Patent and Trademark Office issued proposed guidelines for certain supplemental examination procedures. The PTO also recommended a huge increase in fees for filing certain patent reexaminations. As you might guess, this is a terrible idea.
The reexam process is an essential part of the patent ecosystem. It forms the basis for our Patent Busting Projectand allows us to attack dangerous and overbroad patents like those that are asserted against cash-strapped municipalities.
It's vitally important that public interest groups like EFF and small entities who may lack substantial resources be able to participate in reexams at the PTO. Raising the fees for filing reexams to $17,750 (for filing alone!) promises to discourage that important third-party participation, which the Patent Office claims to care much about. Today, we filed comments with the Patent Office saying as much, and urging the Office to reconsider the fee increase – or at least carve out an exception for public interest groups and other small entities. The Patent Office should use this opportunity to encourage the type of participation in the reexam process that benefits inventors, users, and an agenda that promotes innovation.