HOW DO USPTO USER FEES COMPARE TO GRAFT?

HOW DO USPTO USER FEES COMPARE TO GRAFT?

By Anne Barschall

I can just see people’s hackles going up with my even broaching this topic, but I’ve just been itching to write about it – and then I got a tweet suggesting I write an article and it just tumbled out as if I had been waiting for a moment of demonic possession to inspire me.   If the reader would just put aside his or her knee jerk emotional reaction to the subject, perhaps you will come to agree that there are some interesting points to consider in comparing USPTO user fees to graft. 

Often, when I read about governments in third world countries, I hear that they are inefficient because of corruption.  Also, sometimes US companies get in trouble for participating in graft in foreign countries.  This makes me wonder whether these countries might learn something from the PTO, with its system of user fees.

On the other hand, I also have some concerns as to whether user fees represent a type of corruption of our government, whether outcomes of agency decisions will be altered given the direct dependency of that agency on fees from parties who will potentially benefit from or be hurt by those decisions. 

I am not seeking  to draw any conclusions here – only to stimulate discussion.

I have prepared a table of some points of comparison that might be worth considering – and which also might possibly be amusing.

Feature	Present in graft?	Present in PTO user fees ?
Helps support cost of employees of government agency	Yes	Yes
Helps counter effects of inflation	Yes	Yes
Flexibility based on employee discretion	Yes	No
Fees can be diverted to other government agencies?	No (NB one real advantage)	Yes (Grr)
Transparent	No	Maybe, except for complexity of rules, frequent rate changes, frequent rule changes
Amount to be paid can be determined in advance	No, depends on personnel idiosyncrasy	Partially, but also depends on course of prosecution, which also depends on personnel idiosyncrasy
Especially large payers get special benefits, not generally available	Yes	In principle no, but see footnote[1]
Cost of service proportional to number of service request	Not clear, depends on personnel idiosyncrasy	Yes
Bulk discounts	Probably, if payer develops relationship with one or more government agents	No
Discounts based on ability to pay	Probably in some cases, but not consistent	Small entities pay less, but need is not factored in.
Discounts based on pretty face, personal favors, negotiating skills, or good sob story, or who you know	Often	In principle, no, but there would be a possibility of isolated incidents
Acceleration based on fees	Yes	Yes, but cumbersome prejudicial procedures have been required in addition – though this may be improving soon
Acceleration based on pretty face, personal favors, negotiating skills, good sob story, or who you know	Often	In principle no, but there would be a possibility of isolated incidents
Agency can adjust number of employees based on number of service requests	No, because graft is hard to understand, control, or predict	Yes
Results based on fees rather than public interest	Yes	Not clear.  The USPTO depends for its continued existence on “customer” payments.  Does this structure affect outcomes, when compared with a purely adjudicatory agency?
Widespread inefficiency?	Probably. Agency operation is inconsistent and unpredictable.  Hiring is not clearly linked to workload.  Government officials do not respond to public concerns	Though our system lacks some of the disadvantages of a graft based system, efficiency is always an issue with large organizations.
Employee compensation directly tied to amount of fees collected?	Yes	No (Query: would there be advantages to a commission based approach?)

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[1] Now don’t get me wrong.  I have tremendous admiration for our current USPTO director.  I think he’s doing a great job.  It could be argued that it was an advantage that he came from the USPTO’s largest “customer,” since that meant that he was more familiar with procedures; however the fact remains that his prior employer *was* the USPTO’s largest customer.