The Failed Promise of User Fees: Empirical Evidence from the United States Patent and Trademark Office

Authors

Michael D. Frakes, Duke Law SchoolFollow
Melissa F. Wasserman

Document Type

Article

Publication Date

2014

Keywords

patents, patent law, administrative law, examination priority, grant, bias, budget, PTO, patent and trademark office

Abstract

In an attempt to shed light on the impact of user-fee financing structures on the behavior of administrative agencies, we explore the relationship between the funding structure of the Patent and Trademark Office (PTO) and its examination practices. We suggest that the PTO’s reliance on prior grantees to subsidize current applicants exposes the Agency to a risk that its obligatory costs will surpass incoming fee collections. When such risks materialize, we hypothesize, and thereafter document, that the PTO will restore financial balance by extending preferential examination treatment—i.e., higher granting propensities and/or shorter wait times—to some technologies over others.

Comments

Author pre-print draft.

Citation

Michael D. Frakes & Melissa F. Wasserman, The Failed Promise of User Fees: Empirical Evidence from the United States Patent and Trademark Office, 11 Journal of Empirical Legal Studies 602-636 (2014)