United States Patent and Trademark Office
The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alexandria, Virginia, after a 2005 move from the Crystal City area of neighboring Arlington, Virginia.
"USPO" redirects here. For the agency governing United States Post Offices, see United States Postal Service.Agency overview
July 4, 1836[1][2]
Washington, D.C., U.S.
13,103 (as of September 30, 2022)[3]: 20
- Kathi Vidal, Director
- Derrick Brent, Deputy Director[4]
- Vaishali Udupa, Commissioner for Patents[5]
- David S. Gooder, Commissioner for Trademarks[6]
The USPTO is "unique among federal agencies because it operates solely on fees collected by its users, and not on taxpayer dollars".[7] Its "operating structure is like a business in that it receives requests for services—applications for patents and trademark registrations—and charges fees projected to cover the cost of performing the services [it] provide[s]".[7][8]
The Office is headed by the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, currently held by Kathi Vidal as of April 19, 2022. Andrei Iancu was the former director of the USPTO until he left office on January 20, 2021.
The USPTO cooperates with the European Patent Office (EPO) and the Japan Patent Office (JPO) as one of the Trilateral Patent Offices. The USPTO is also a Receiving Office, an International Searching Authority and an International Preliminary Examination Authority for international patent applications filed in accordance with the Patent Cooperation Treaty.
The legal basis for the United States patent system is the Copyright Clause in Section 8 of Article I of the U.S. Constitution, which gives Congress the power to grant patents and copyrights on a national basis. Trademark law, on the other hand, is considered to be authorized by the Commerce Clause.[9]
The USPTO maintains a permanent, interdisciplinary historical record of all U.S. patent applications in order to fulfill objectives outlined in the United States Constitution.[7] The PTO's mission is to promote "industrial and technological progress in the United States and strengthen the national economy" by:
Fee diversion[edit]
For many years, Congress has "diverted" about 10% of the fees that the USPTO collected into the general treasury of the United States. In effect, this took money collected from the patent system to use for the general budget. This fee diversion has been generally opposed by patent practitioners (e.g., patent attorneys and patent agents), inventors, the USPTO,[76] as well as former federal judge Paul R. Michel.[77] These stakeholders would rather use the funds to improve the patent office and patent system, such as by implementing the USPTO's 21st Century Strategic Plan.[78] The last six annual budgets of the George W. Bush administration did not propose to divert any USPTO fees, and the first budget of the Barack Obama administration continued this practice,[79] as well as the second budget of the Trump administration;[80] however, stakeholders continue to press for a permanent end to fee diversion.[81]
The discussion of which party can appropriate the fees is more than a financial question. Patent fees represent a policy lever that influences both the number of applications submitted to the office as well as their quality.[82][83]
Trademarks[edit]
The USPTO examines applications for trademark registration, which can be filed under five different filing bases: use in commerce, intent to use, foreign application, foreign registration, or international registration.[89] If approved, the trademarks are registered on either the Principal Register or the Supplemental Register, depending upon whether the mark meets the appropriate distinctiveness criteria. This federal system governs goods and services distributed via interstate commerce, and operates alongside state level trademark registration systems.[90][91][92]
Trademark applications have grown substantially in recent years, jumping from 296,490 new applications in 2000,[93] to 345,000 new applications in 2014, to 458,103 new applications in 2018.[94] Recent growth has been driven partially by growing numbers of trademark applications originating in China; trademark applications from China have grown more than 12-fold since 2013, and in 2017, one in every nine trademark applications reviewed by the U.S. Trademark Office originated in China.[95]
Since 2008, the Trademark Office has hosted a National Trademark Expo every two years, billing it as "a free, family-friendly event designed to educate the public about trademarks and their importance in the global marketplace."[96] The Expo features celebrity speakers such as Anson Williams (of the television show Happy Days)[97] and basketball player Kareem Abdul-Jabbar[98] and has numerous trademark-holding companies as exhibitors. Before the 2009 National Trademark Expo, the Trademark Office designed and launched a kid-friendly trademark mascot known as T. Markey, who appears as an anthropomorphized registered trademark symbol.[99] T. Markey is featured prominently on the Kids section of the USPTO website, alongside fellow IP mascots Ms. Pat Pending (with her robot cat GeaRS) and Mark Trademan.[100]
In 2020, trademark applications marked the sharpest declines and inclines in American history. During the spring, COVID-19 lockdowns led to reduced filings, which then increased in July 2020 to exceed the previous year. August 2020 was subsequently the highest month of trademark filings in the history of the U.S. Patent and Trademark Office.[101]
Representation[edit]
The USPTO only allows certain qualified persons to practice before the USPTO. Practice includes filing of patent and trademark applications on behalf of individuals and companies, prosecuting the patent and trademark applications, and participating in administrative appeals and other proceedings before the PTO examiners, examining attorneys and boards. The USPTO sets its own standards for who may practice. Any person who practices patent law before the USPTO must become a registered patent attorney or agent. A patent agent is a person who has passed the USPTO registration examination (the "patent bar") but has not passed any state bar exam to become a licensed attorney; a patent attorney is a person who has passed both a state bar and the patent bar and is in good standing as an attorney.[102] A patent agent can only act in a representative capacity in patent matters presented to the USPTO, and may not represent a patent holder or applicant in a court of law. To be eligible for taking the patent bar exam, a candidate must possess a degree in "engineering or physical science or the equivalent of such a degree".[102] Any person who practices trademark law before the USPTO must be an active member in good standing of the highest court of any state.[103]
The United States allows any citizen from any country to sit for the patent bar (if he/she has the requisite technical background).[104] Only Canada has a reciprocity agreement with the United States that confers upon a patent agent similar rights.[105]
An unrepresented inventor may file a patent application and prosecute it on his or her own behalf (pro se). If it appears to a patent examiner that an inventor filing a pro se application is not familiar with the proper procedures of the Patent Office, the examiner may suggest that the filing party obtain representation by a registered patent attorney or patent agent.[106] The patent examiner cannot recommend a specific attorney or agent, but the Patent Office does post a list of those who are registered.[107]
While the inventor of a relatively simple-to-describe invention may well be able to produce an adequate specification and detailed drawings, there remains language complexity in what is claimed, either in the particular claim language of a utility application, or in the manner in which drawings are presented in a design application. There is also skill required when searching for prior art that is used to support the application and to prevent applying for a patent for something that may be unpatentable. A patent examiner will make special efforts to help pro se inventors understand the process but the failure to adequately understand or respond to an Office action from the USPTO can endanger the inventor's rights, and may lead to abandonment of the application.