Courtenay Brinckerhoff Discusses Proposed USPTO Patent Fee Increases

Foley & Lardner LLP Partner Courtenay Brinckerhoff is quoted in the Law360 article, “USPTO Floats Raft Of Significant Patent Fee Hikes,” commenting on the U.S. Patent and Trademark Office’s (USPTO) proposed series of patent fee increases.

Brinckerhoff said the proposed “escalating RCE (request for continued examination) fees are almost to the point of getting punitive,” as each time an applicant requests continued examination and amends their patent claim, the examiner does a new search and can cite different prior art to reject the application, which could prompt another request, so “it’s sort of like whack-a-mole.” When multiple requests are filed, “it’s not necessarily an applicant behaving badly or not advancing prosecution. It’s that the prior art can keep changing,” Brinckerhoff explained.

While the process of reviewing such requests is “complex and lengthy,” Brinckerhoff added that the proposed fee increase is still more than double what the USPTO has said it costs historically to process such applications.

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