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35 U.S.C. 41 Patent fees; patent and trademark search systems. - Patent Laws
35 U.S.C. 41 Patent fees; patent and trademark search systems.
*Editor's Note: During fiscal years 2005 and 2006, subsections (a) and (b) of section 41 of title 35, United States Code, shall be administered as though subsections (a) and (b) read as follows:
(a) GENERAL FEES. - The Director shall charge the following fees:
(1) FILING AND BASIC NATIONAL FEES. -
(A) On filing each application for an original patent, except for design, plant, or provisional applications, $300.
(B) On filing each application for an original design patent, $200.
(C) On filing each application for an original plant patent, $200.
(D) On filing each provisional application for an original patent, $200.
(E) On filing each application for the reissue of a patent, $300.
(F) The basic national fee for each international application filed under the treaty defined in section 351(a) of this title entering the national stage under section 371 of this title, $300.
(G) In addition, excluding any sequence listing or computer program listing filed in electronic medium as prescribed by the Director, for any application the specification and drawings of which exceed 100 sheets of paper (or equivalent as prescribed by the Director if filed in an electronic medium), $250 for each additional 50 sheets of paper (or equivalent as prescribed by the Director if filed in an electronic medium) or fraction thereof.
(2) EXCESS CLAIMS FEES. - In addition to the fee specified in paragraph (1) -
(A) on filing or on presentation at any other time, $200 for each claim in independent form in excess of 3;
(B) on filing or on presentation at any other time, $50 for each claim (whether dependent or independent) in excess of 20; and
(C) for each application containing a multiple dependent claim, $360.
For the purpose of computing fees under this paragraph, a multiple dependent claim referred to in section 112 of this title or any claim depending therefrom shall be considered as separate dependent claims in accordance with the number of claims to which reference is made. The Director may by regulation provide for a refund of any part of the fee specified in this paragraph for any claim that is canceled before an examination on the merits, as prescribed by the Director, has been made of the application under section 131 of this title. Errors in payment of the additional fees under this paragraph may be rectified in accordance with regulations prescribed by the Director.(3) EXAMINATION FEES. -
(A) For examination of each application for an original patent, except for design, plant, provisional, or international applications, $200.
(B) For examination of each application for an original design patent, $130.
(C) For examination of each application for an original plant patent, $160.
(D) For examination of the national stage of each international application, $200.
(E) For examination of each application for the reissue of a patent, $600.
The provisions of section 111(a) of this title relating to the payment of the fee for filing the application shall apply to the payment of the fee specified in this paragraph with respect to an application filed under section 111(a) of this title. The provisions of section 371(d) of this title relating to the payment of the national fee shall apply to the payment of the fee specified in this paragraph with respect to an international application.(4) ISSUE FEES. -
(A) For issuing each original patent, except for design or plant patents, $1,400.
(B) For issuing each original design patent, $800.
(C) For issuing each original plant patent, $1,100.
(D) For issuing each reissue patent, $1,400.
(5) DISCLAIMER FEE. - On filing each disclaimer, $130.
(6) APPEAL FEES. -
(A) On filing an appeal from the examiner to the Board of Patent Appeals and Interferences, $500.
(B) In addition, on filing a brief in support of the appeal, $500, and on requesting an oral hearing in the appeal before the Board of Patent Appeals and Interferences, $1,000.
(7) REVIVAL FEES. - On filing each petition for the revival of an unintentionally abandoned application for a patent, for the unintentionally delayed payment of the fee for issuing each patent, or for an unintentionally delayed response by the patent owner in any reexamination proceeding, $1,500, unless the petition is filed under section 133 or 151 of this title, in which case the fee shall be $500.
(8) EXTENSION FEES. - For petitions for 1-month extensions of time to take actions required by the Director in an application -
(A) on filing a first petition, $120;
(B) on filing a second petition, $330; and
(C) on filing a third or subsequent petition, $570.
(b) MAINTENANCE FEES. - The Director shall charge the following fees for maintaining in force all patents based on applications filed on or after December 12, 1980:
(1) 3 years and 6 months after grant, $900.
(2) 7 years and 6 months after grant, $2,300.
(3) 11 years and 6 months after grant, $3,800.
Unless payment of the applicable maintenance fee is received in the United States Patent and Trademark Office on or before the date the fee is due or within a grace period of 6 months thereafter, the patent will expire as of the end of such grace period. The Director may require the payment of a surcharge as a condition of accepting within such 6-month grace period the payment of an applicable maintenance fee. No fee may be established for maintaining a design or plant patent in force.
(Dec. 8, 2004, Public Law 108-447, sec. 801, 118 Stat. 2809.)
The bracketed text below is the unamended text of 35 U.S.C. 41(a) and (b), which may continue to have effect following fiscal year 2006:
[(a) The Director shall charge the following fees:
(1)
(A) On filing each application for an original patent, except in design or plant cases, $690.
(B) In addition, on filing or on presentation at any other time, $78 for each claim in independent form which is in excess of 3, $18 for each claim (whether independent or dependent) which is in excess of 20, and $260 for each application containing a multiple dependent claim.
(C) On filing each provisional application for an original patent, $150.
(2) For issuing each original or reissue patent, except in design or plant cases, $1,210.
(3) In design and plant cases-
(A) on filing each design application, $310;
(B) on filing each plant application, $480;
(C) on issuing each design patent, $430; and
(D) on issuing each plant patent, $580.
(4)
(A) On filing each application for the reissue of a patent, $690.
(B) In addition, on filing or on presentation at any other time, $78 for each claim in independent form which is in excess of the number of independent claims of the original patent, and $18 for each claim (whether independent or dependent) which is in excess of 20 and also in excess of the number of claims of the original patent.
(5) On filing each disclaimer, $110.
(6)
(A) On filing an appeal from the examiner to the Board of Patent Appeals and Interferences, $300.
(B) In addition, on filing a brief in support of the appeal, $300, and on requesting an oral hearing in the appeal before the Board of Patent Appeals and Interferences, $260.
(7) On filing each petition for the revival of an unintentionally abandoned application for a patent, for the unintentionally delayed payment of the fee for issuing each patent, or for an unintentionally delayed response by the patent owner in any reexamination proceeding, $1,210, unless the petition is filed under section 133 or 151 of this title, in which case the fee shall be $110.
(8) For petitions for 1-month extensions of time to take actions required by the Director in an application-
(A) on filing a first petition, $110;
(B) on filing a second petition, $270; and
(C) on filing a third or subsequent petition, $490.
(9) Basic national fee for an international application where the Patent and Trademark Office was the International Preliminary Examining Authority and the International Searching Authority, $670.
(10) Basic national fee for an international application where the Patent and Trademark Office was the International Searching Authority but not the International Preliminary Examining Authority, $690.
(11) Basic national fee for an international application where the Patent and Trademark Office was neither the International Searching Authority nor the International Preliminary Examining Authority, $970.
(12) Basic national fee for an international application where the international preliminary examination has been paid to the Patent and Trademark Office, and the international preliminary examination report states that the provisions of Article 33 (2), (3), and (4) of the Patent Cooperation Treaty have been satisfied for all claims in the application entering the national stage, $96.
(13) For filing or later presentation of each independent claim in the national stage of an international application in excess of 3, $78.
(14) For filing or later presentation of each claim (whether independent or dependent) in a national stage of an international application in excess of 20, $18.
(15) For each national stage of an international application containing a multiple dependent claim, $260. For the purpose of computing fees, a multiple dependent claim as referred to in section 112 of this title or any claim depending therefrom shall be considered as separate dependent claims in accordance with the number of claims to which reference is made. Errors in payment of the additional fees may be rectified in accordance with regulations of the Director.
(b) The Director shall charge the following fees for maintaining in force all patents based on applications filed on or after December 12, 1980:
(1) 3 years and 6 months after grant, $830.
(2) 7 years and 6 months after grant, $1,900.
(3) 11 years and 6 months after grant, $2,910. Unless payment of the applicable maintenance fee is received in the Patent and Trademark Office on or before the date the fee is due or within a grace period of six months thereafter, the patent will expire as of the end of such grace period. The Director may require the payment of a surcharge as a condition of accepting within such 6-month grace period the payment of an applicable maintenance fee. No fee may be established for maintaining a design or plant patent in force.]
(c)
(1) The Director may accept the payment of any maintenance fee required by subsection (b) of this section which is made within twenty-four months after the six-month grace period if the delay is shown to the satisfaction of the Director to have been unintentional, or at any time after the six-month grace period if the delay is shown to the satisfaction of the Director to have been unavoidable. The Director may require the payment of a surcharge as a condition of accepting payment of any maintenance fee after the six-month grace period. If the Director accepts payment of a maintenance fee after the six-month grace period, the patent shall be considered as not having expired at the end of the grace period.
(2) A patent, the term of which has been maintained as a result of the acceptance of a payment of a maintenance fee under this subsection, shall not abridge or affect the right of any person or that person's successors in business who made, purchased, offered to sell, or used anything protected by the patent within the United States, or imported anything protected by the patent into the United States after the 6-month grace period but prior to the acceptance of a maintenance fee under this subsection, to continue the use of, to offer for sale, or to sell to others to be used, offered for sale, or sold, the specific thing so made, purchased, offered for sale, used, or imported. The court before which such matter is in question may provide for the continued manufacture, use, offer for sale, or sale of the thing made, purchased, offered for sale, or used within the United States, or imported into the United States, as specified, or for the manufacture, use, offer for sale, or sale in the United States of which substantial preparation was made after the 6-month grace period but before the acceptance of a maintenance fee under this subsection, and the court may also provide for the continued practice of any process that is practiced, or for the practice of which substantial preparation was made, after the 6-month grace period but before the acceptance of a maintenance fee under this subsection, to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced after the 6-month grace period but before the acceptance of a maintenance fee under this subsection.
*Editor's Note: During fiscal years 2005 and 2006, subsection (d) of section 41 of title 35, United States Code, shall be administered as though subsection (d) reads as follows:
(d) PATENT SEARCH AND OTHER FEES. -
(1) PATENT SEARCH FEES. -
(A) The Director shall charge a fee for the search of each application for a patent, except for provisional applications. The Director shall establish the fees charged under this paragraph to recover an amount not to exceed the estimated average cost to the Office of searching applications for patent either by acquiring a search report from a qualified search authority, or by causing a search by Office personnel to be made, of each application for patent. For the 3-year period beginning on the date of enactment of this Act, the fee for a search by a qualified search authority of a patent application described in clause (i), (iv), or (v) of subparagraph (B) may not exceed $500, of a patent application described in clause (ii) of subparagraph (B) may not exceed $100, and of a patent application described in clause (iii) of subparagraph (B) may not exceed $300. The Director may not increase any such fee by more than 20 percent in each of the next three 1-year periods, and the Director may not increase any such fee thereafter.
(B) For purposes of determining the fees to be established under this paragraph, the cost to the Office of causing a search of an application to be made by Office personnel shall be deemed to be -
(i) $500 for each application for an original patent, except for design, plant, provisional, or international applications;
(ii) $100 for each application for an original design patent;
(iii) $300 for each application for an original plant patent;
(iv) $500 for the national stage of each international application; and
(v) $500 for each application for the reissue of a patent.
(C) The provisions of section 111 (a)(3) of this title relating to the payment of the fee for filing the application shall apply to the payment of the fee specified in this paragraph with respect to an application filed under section 111(a) of this title. The provisions of section 371(d) of this title relating to the payment of the national fee shall apply to the payment of the fee specified in this paragraph with respect to an international application.
(D) The Director may by regulation provide for a refund of any part of the fee specified in this paragraph for any applicant who files a written declaration of express abandonment as prescribed by the Director before an examination has been made of the application under section 131 of this title, and for any applicant who provides a search report that meets the conditions prescribed by the Director.
(E) For purposes of subparagraph (A), a "qualified search authority" may not include a commercial entity unless -
(i) the Director conducts a pilot program of limited scope, conducted over a period of not more than 18 months, which demonstrates that searches by commercial entities of the available prior art relating to the subject matter of inventions claimed in patent applications -
are accurate; and
meet or exceed the standards of searches conducted by and used by the Patent and Trademark Office during the patent examination process;
(ii) the Director submits a report on the results of the pilot program to Congress and the Patent Public Advisory Committee that includes -
a description of the scope and duration o f the pilot program;
the identity of each commercial entity participating in the pilot program;
an explanation of the methodology used to evaluate the accuracy and quality of the search reports; and
an assessment of the effects that the pilot program, as compared to searches conducted by the Patent and Trademark Office, had and will have on -
patentability determinations;
productivity of the Patent and Trademark Office;
costs to the Patent and Trademark Office;
(dd) costs to patent applicants; and
other relevant factors;
(iii) the Patent Public Advisory Committee reviews and analyzes the Director's report under clause (ii) and the results of the pilot program and submits a separate report on its analysis to the Director and the Congress that includes -
an independent evaluation of the effects that the pilot program, as compared to searches conducted by the Patent and Trademark Office, had and will have on the factors set forth in clause (ii)(IV); and
an analysis of the reasonableness, appropriateness, and effectiveness of the methods used in the pilot program to make the evaluations required under clause (ii)(IV); and
Congress does not, during the 1-year period beginning on the date on which the Patent Public Advisory Committee submits its report to the Congress under clause (iii), enact a law prohibiting searches by commercial entities of the available prior art relating to the subject matter of inventions claimed in patent applications.
(F) The Director shall require that any search by a qualified search authority that is a commercial entity is conducted in the United States by persons that -
(i) if individuals, are United States citizens; and
(ii) if business concerns, are organized under the laws of the United States or any State and employ United States citizens to perform the searches.
(G) A search of an application that is the subject of a secrecy order under section 181 or otherwise involves classified information may only be conducted by Office personnel.
(H) A qualified search authority that is a commercial entity may not conduct a search of a patent application if the entity has any direct or indirect financial interest in any patent or in any pending or imminent application for patent filed or to be filed in the Patent and Trademark Office.
(2) OTHER FEES. - The Director shall establish fees for all other processing, services, or materials relating to patents not specified in this section to recover the estimated average cost to the Office of such processing, services; or materials, except that the Director shall charge the following fees for the following services:
(A) For recording a document affecting title, $40 per property.
(B) For each photocopy, $.25 per page.
(C) For each black and white copy of a patent, $3. The yearly fee for providing a library specified in section 12 of this title with uncertified printed copies of the specifications and drawings for all patents in that year shall be $50.
(Dec. 8, 2004, Public Law 108-447, sec. 801, 118 Stat. 2809.)
The bracketed text below is the unamended text of 35 U.S.C. 41(d), which may continue to have effect following fiscal year 2006:
[(d) The Director shall establish fees for all other processing, services, or materials relating to patents not specified in this section to recover the estimated average cost to the Office of such processing, services, or materials, except that the Director shall charge the following fees for the following services:
(1) For recording a document affecting title, $40 per property.
(2) For each photocopy, $.25 per page.
(3) For each black and white copy of a patent, $3. The yearly fee for providing a library specified in section 13 of this title with uncertified printed copies of the specifications and drawings for all patents issued in that year shall be $50.]
(e) The Director may waive the payment of any fee for any service or material related to patents in connection with an occasional or incidental request made by a department or agency of the Government, or any officer thereof. The Director may provide any applicant issued a notice under section 132 of this title with a copy of the specifications and drawings for all patents referred to in that notice without charge.
(f) The fees established in subsections (a) and (b) of this section may be adjusted by the Director on October 1, 1992, and every year thereafter, to reflect any fluctuations occurring during the previous 12 months in the Consumer Price Index, as determined by the Secretary of Labor. Changes of less than 1 per centum may be ignored. *Editor's Note: During fiscal years 2005 and 2006, subsection (f) of section 41 of title 35, United States Code applies to the fees established under section 801 of Public Law 108-447. (Dec. 8, 2004, Public Law 108-447, sec. 801, 118 Stat. 2809.)
(g) No fee established by the Director under this section shall take effect until at least 30 days after notice of the fee has been published in the Federal Register and in the Official Gazette of the Patent and Trademark Office.
*Editor's Note: During fiscal years 2005 and 2006, subsection (h) of section 41 of title 35, United States Code, shall be administered as though subsection (h) reads as follows:
(h)
(1) Subject to paragraph (3), fees charged under subsections (a), (b) and (d)(1) shall be reduced by 50 percent with respect to their application to any small business concern as defined under section 3 of the Small Business Act, and to any independent inventor or nonprofit organization as defined in regulations issued by the Director.
(2) With respect to its application to any entity described in paragraph (1), any surcharge or fee charged under subsection (c) or (d) shall not be higher than the surcharge or fee required of any other entity under the same or substantially similar circumstances.
(3) The fee charged under subsection (a)(l)(A) shall be reduced by 75 percent with respect to its application to any entity to which paragraph (1) applies, if the application is filed by electronic means as prescribed by the Director.
(Dec. 8, 2004, Public Law 108-447, sec. 801, 118 Stat. 2809.)
The bracketed text below is the unamended text of 35 U.S.C. 41(h), which may continue to have effect following fiscal year 2006:
[(h)
(1) Fees charged under subsection (a) or (b) shall be reduced by 50 percent with respect to their application to any small business concern as defined under section 3 of the Small Business Act, and to any independent inventor or nonprofit organization as defined in regulations issued by the Director.
(2) With respect to its application to any entity described in paragraph (1), any surcharge or fee charged under subsection (c) or (d) shall not be higher than the surcharge or fee required of any other entity under the same or substantially similar circumstances.]
(i)
(1) The Director shall maintain, for use by the public, paper, microform or electronic collections of United States patents, foreign patent documents, and United States trademark registrations arranged to permit search for and retrieval of information. The Director may not impose fees directly for the use of such collections, or for the use of the public patent and trademark search rooms or libraries.
(2) The Director shall provide for the full deployment of the automated search systems of the Patent and Trademark Office so that such systems are available for use by the public, and shall assure full access by the public to, and dissemination of, patent and trademark information, using a variety of automated methods, including electronic bulletin boards and remote access by users to mass storage and retrieval systems.
(3) The Director may establish reasonable fees for access by the public to the automated search systems of the Patent and Trademark Office. If such fees are established, a limited amount of free access shall be made available to users of the systems for purposes of education and training. The Director may waive the payment by an individual of fees authorized by this subsection upon a showing of need or hardship, and if such waiver is in the public interest.
(4) The Director shall submit to the Congress an annual report on the automated search systems of the Patent and Trademark Office and the access by the public to such systems. The Director shall also publish such report in the Federal Register. The Director shall provide an opportunity for the submission of comments by interested persons on each such report.
(Amended July 24, 1965, Public Law 89-83, sec. 1, 2, 79 Stat. 259; Jan. 2, 1975, Public Law 93-596, sec. 1, Jan. 2, 1975, 88 Stat. 1949; Nov. 14, 1975, Public Law 94-131, sec. 3, 89 Stat. 690.)
(Subsection (g) amended Dec. 12, 1980, Public Law 96-517, sec. 2, 94 Stat. 3017; Aug. 27, 1982, Public Law 97-247, sec. 3(a)-(e), 96 Stat. 317.)
(Subsections (a)-(d) amended Sept. 8, 1982, Public Law 97-256, sec. 101, 96 Stat. 816.)
(Subsection (a)(6) amended Nov. 8, 1984, Public Law 98-622, sec. 204(a), 98 Stat. 3388.)
(Subsection (h) added Nov. 6, 1986, Public Law 99-607, sec. 1(b)(2), 100 Stat. 3470.)
(Subsections (a), (b), (d), (f), and (g) amended Dec. 10, 1991, Public Law 102-204, sec. 5, 105 Stat. 1637.)
(Subsections (a)(9) - (15) and (i) added Dec. 10, 1991, Public Law 102-204, sec. 5, 105 Stat. 1637.)
(Subsection (c)(1) amended Oct. 23, 1992, Public Law 102-444, sec. 1, 106 Stat. 2245.)
(Subsection (a)(1)(C) added Dec. 8, 1994, Public Law 103-465, sec. 532(b)(2), 108 Stat. 4986.)
(Subsection (c)(2) amended, Dec. 8, 1994, Public Law 103-465, sec. 533(b)(1), 108 Stat. 4988.)
(Subsections (a)-(b) revised Nov. 10, 1998, Public Law 105-358, sec. 3, 112 Stat. 3272.)
(Amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-554, 570, 582, 589 (S. 1948 secs. 4202, 4605(a), 4732(a)(5), 4732(a)(10)(A)) and 4804(d)).)
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