The James Madison building on the campus of the United States Patent and Trademark Office headquarters in Alexandria. This is the largest building on the campus. | |
Agency overview | |
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Formed | July 4, 1836 [1] [2] Washington, D.C., U.S. |
Headquarters | Alexandria, Virginia, U.S. 38°48′05″N77°03′50″W / 38.801499°N 77.063835°W |
Employees | 13,103 (as of September 30, 2022) [3] : 20 |
Agency executives | |
Parent agency | United States Department of Commerce |
Website | www |
United States patent law |
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Legislation |
Types of patent claims |
Procedures |
Other topics |
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.
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. As of December 2024 [update] , Derrick Brent is acting undersecretary and director, [9] having taken on that role upon the resignation of Kathi Vidal on December 13, 2024. [4]
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. [10]
The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
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:
The USPTO is headquartered at the Alexandria Campus, consisting of 11 buildings in a city-like development surrounded by ground floor retail and high rise residential buildings between the Metro stations of King Street station (the main search building is two blocks due south of the King Street station) and Eisenhower Avenue station where the actual Alexandria Campus is located between Duke Street (on the North) to Eisenhower Avenue (on the South), and between John Carlyle Street (on the East) to Elizabeth Lane (on the West) in Alexandria, Virginia. [11] [12] [13] An additional building in Arlington, Virginia, was opened in 2009.
The USPTO was expected by 2014 to open its first ever satellite offices in Detroit, Dallas, Denver, and Silicon Valley to reduce backlog and reflect regional industrial strengths. [14] The first satellite office opened in Detroit on July 13, 2012. [15] [16] [17] [18] [19] In 2013, due to the budget sequestration, the satellite office for Silicon Valley, which is home to one of the nation's top patent-producing cities, was put on hold. [20] However, renovation and infrastructure updates continued after the sequestration, and the Silicon Valley location opened in the San Jose City Hall in 2015. [21]
As of September 30,2009 [update] , the end of the U.S. government's fiscal year, the PTO had 9,716 employees, nearly all of whom are based at its five-building headquarters complex in Alexandria. Of those, 6,242 were patent examiners (almost all of whom were assigned to examine utility patents; only 99 were assigned to examine design patents) and 388 were trademark examining attorneys; the rest are support staff. [22] While the agency has noticeably grown in recent years, the rate of growth was far slower in fiscal 2009 than in the recent past; this is borne out by data from fiscal 2005 to the present: [22] As of the end of FY 2018, the USPTO was composed of 12,579 federal employees, including 8,185 patent examiners, 579 trademark examiners, and 3,815 other staff. [23]
At end of FY | Employees | Patent examiners | Trademark examining attorneys | Patent Filings (Utility) | Trademark Filings | Patent Application Backlog |
---|---|---|---|---|---|---|
2023 [24] | 13,452 [24] : 2,22 | 8,568 [24] : 22 | 756 [24] : 22 | 594,143 [24] : 6 | 737,018 [24] : 7 | |
2022 | 13,103 [3] : 20 | 8,509 [3] : 20 | 718 [3] : 20 | 457,510 [3] : 22 | 787,798 [3] : 24 | |
2021 | 12,963 [25] : 2,19,243 | 8,073 [25] : 19,243 | 662 [25] : 19,243 | 650,703 [25] : 38 | 943,928 [25] : 38,223 | |
2020 [26] | 12,928 | 8,434 | 622 | 653,311 [25] : 38,201 | 738,112 [25] : 38,223 | |
2019 [27] | 12,652 | 9,614 | 701 | 666,843 [25] : 38,201 | 673,233 [25] : 38,223 | |
2018 [28] | 12,579 | 8,185 | 579 | 647,572 [25] : 38,201 | 594,107 [25] : 38 | |
2017 [29] | 12,588 | 8,147 | 549 | 650,350 [25] : 38,201 | 530,270 [25] : 38 | 526,579 |
2016 [30] | 12,725 | 8,351 | 570 | 650,411 | 530,270 | 537,655 |
2015 [31] | 12,667 | 9,161 | 456 | 618,062 [30] | 503,889 [30] | 553,221 [30] |
2014 [32] | 12,450 | 9,302 | 429 | 618,457 [30] | 455,017 [30] | |
2013 [33] | 11,773 | 8,051 | 409 | 601,464 [30] | 433,654 [30] | |
2012 [34] | 11,531 | 7,935 | 386 | 565,406 | 415,026 | 608,283 |
2011 [35] | 10,210 | 6,780 | 378 | 536,604 | 398,667 | |
2010 [36] | 9,507 | 6,225 | 378 | 509,367 | 368,939 | 726,331 |
2009 [37] | 9,716 | 6,243 | 388 | 485,500 | 352,051 | 750,596 |
2008 [38] | 9,518 | 6,055 | 398 | 495,095 | 401,392 | 750,596 |
2007 [39] | 8,913 | 5,477 | 404 | 467,243 | 394,368 | |
2006 [40] | 4,779 | 413 | ||||
2005 | 4,177 [40] | 357 [40] | ||||
2004 | 3,681 [40] | 286 [40] | ||||
2003 | 3,579 [40] | 256 [40] | ||||
1998 [41] | 5,300 | |||||
1996 [42] [43] [44] | 189,979 [43] | 200,640 [44] | ||||
1995 [45] | 221,304 | 175,307 | ||||
1994 [46] | 186,126 | 155,376 | ||||
1993 [46] | 174,553 | 139,735 | ||||
1992 [46] | 172,539 | 125,237 | ||||
1986 | 120,988 [43] | 69,253 [44] | ||||
1976 | 101,807 [43] | 37,074 [44] |
Patent examiners make up the bulk of the employees at USPTO. They hold degrees in various scientific disciplines, but do not necessarily hold law degrees. Unlike patent examiners, trademark examiners must be licensed attorneys.[ citation needed ]
All examiners work under a strict, "count"-based production system. [47] For every application, "counts" are earned by composing, filing, and mailing a first office action on the merits, and upon disposal of an application.
Prior to 2012, decisions of patent examiners could be appealed to the Board of Patent Appeals and Interferences, an administrative law body of the USPTO. Decisions of the BPAI could further be appealed to the United States Court of Appeals for the Federal Circuit, or a civil suit could be brought against the Commissioner of Patents in the United States District Court for the Eastern District of Virginia. [48] The United States Supreme Court may ultimately decide on a patent case. Under the America Invents Act, the BPAI was converted to the Patent Trial and Appeal Board or "PTAB". [49] Similarly, decisions of trademark examiners could be appealed to the Trademark Trial and Appeal Board, with subsequent appeals directed to the Federal Circuit, or a civil action may also be brought.
In October 2021, President Joe Biden nominated attorney Kathi Vidal to serve as the USPTO director. [50] She was sworn in on April 13, 2022. [51] On December 16, 2022, Kathi Vidal announced that Vaishali Udupa, [52] an intellectual property attorney, engineer, and currently a top executive from Hewlett Packard Enterprise (HPE), will join the 13,000-person Department of Commerce agency as the new commissioner for patents effective January 17, 2023. [53]
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, [54] as well as former federal judge Paul R. Michel. [55] 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. [56] 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, [57] as well as the second budget of the Trump administration; [58] however, stakeholders continue to press for a permanent end to fee diversion. [59]
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. [60] [61]
Patent Number | Patent Title | Issue Date | Days Since Last Millionth Issue |
---|---|---|---|
1 [67] | Traction Wheels | July 13, 1836 | |
1,000,000 [68] | Vehicle Tire | August 8, 1911 | 27,419 |
2,000,000 [69] | Vehicle Wheel Construction | May 12, 1932 | 7,583 |
3,000,000 [70] | Automatic Reading System | May 6, 1955 | 8,394 |
4,000,000 [71] | Process for Recycling Asphalt-Aggregate Compositions | December 28, 1976 | 7,907 |
5,000,000 [72] | Ethanol Production by Escherichia Coli Strains | March 19, 1991 | 5,194 |
6,000,000 [73] | Extendible Method and Apparatus for Synchronizing Multiple Files on Two Different Computer Systems | December 7, 1999 | 3,185 |
7,000,000 [74] | Polysaccharide Fibers | February 14, 2006 | 2,261 |
8,000,000 [75] | Visual Prosthesis | August 16, 2011 | 2,009 |
9,000,000 [76] | Windshield Washer Conditioner | April 7, 2015 | 1,330 |
10,000,000 [77] | Coherent Ladar Using Intra-Pixel Quadrature Detection | June 19, 2018 | 1,169 |
11,000,000 [78] | Repositioning Wires and Methods for Repositioning Prosthetic Heart Valve Devices within a Heart Chamber | May 11, 2021 | 1,057 |
12,000,000 [79] | Labeled Nucleotide Analogs, Reaction Mixtures, and Methods and System for Sequencing | June 4, 2024 | 1,120 |
Days since last millionth patent filed at the USPTO |
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. [80] 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. [81] [82] [83]
Trademark applications have grown substantially in recent years, jumping from 296,490 new applications in 2000, [84] to 345,000 new applications in 2014, to 458,103 new applications in 2018. [85] 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. [86]
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." [87] The Expo features celebrity speakers such as Anson Williams (of the television show Happy Days ) [88] and basketball player Kareem Abdul-Jabbar [89] 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. [90] 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. [91]
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. [92]
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. [93] 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". [93] Any person who practices trademark law before the USPTO must be an active member in good standing of the highest court of any state. [94]
The United States allows any citizen from any country to sit for the patent bar (if he/she has the requisite technical background). [95] Only Canada has a reciprocity agreement with the United States that confers upon a patent agent similar rights. [96]
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. [97] The patent examiner cannot recommend a specific attorney or agent, but the Patent Office does post a list of those who are registered. [98]
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.
The USPTO accepts patent applications filed in electronic form. Inventors or their patent agents/attorneys can file applications as Adobe PDF documents. Filing fees can be paid by credit card or by a USPTO "deposit account".
The USPTO web site provides free electronic copies of issued patents and patent applications as multiple-page TIFF (graphic) documents. The site also provides Boolean search and analysis tools. [99]
The USPTO's free distribution service only distributes the patent documents as a set of TIFF files. [100] Numerous free and commercial services provide patent documents in other formats, such as Adobe PDF and CPC.
The USPTO has been criticized for granting patents for impossible or absurd, already known, or arguably obvious inventions. [101] Economists have documented that, although the USPTO makes mistakes when granting patents, these mistakes might be less prominent than some might believe. [102]
The USPTO has been criticized for taking an inordinate amount of time in examining patent applications. This is particularly true in the fast-growing area[ needs update ] of business method patents. As of 2005, patent examiners in the business method area were still examining patent applications filed in 2001.[ citation needed ]
The delay was attributed by spokesmen for the Patent Office to a combination of a sudden increase in business method patent filings after the 1998 State Street Bank decision, the unfamiliarity of patent examiners with the business and financial arts (e.g., banking, insurance, stock trading etc.), and the issuance of a number of controversial patents (e.g., U.S. patent 5,960,411 "Amazon one click patent") in the business method area.
Effective August 2006, the USPTO introduced an accelerated patent examination procedure in an effort to allow inventors a speedy evaluation of an application with a final disposition within twelve months. The procedure requires additional information to be submitted with the application and also includes an interview with the examiner. [120] The first accelerated patent was granted on March 15, 2007, with a six-month issuance time. [121]
As of the end of 2008, there were 1,208,076 patent applications pending at the Patent Office. At the end of 1997, the number of applications pending was 275,295. Therefore, over those eleven years there was a 439% increase in the number of pending applications. [122]
December 2012 data showed that there was 597,579 unexamined patent applications in the backlog. [123] During the four years since 2009, more than a 50% reduction was achieved. First action pendency was reported as 19.2 months.
In 2012, the USPTO initiated an internal investigation into allegations of fraud by employees taking advantage of its remote work policies. Investigators discovered that some patent examiners had lied about the hours they had worked, but high level officials prevented access to computer records, thus limiting the number of employees who could be punished. [124]
Directors of the USPTO |
1. List of people who have headed the United States Patent Office |
... |
r. Bruce Lehman (1993–1998) |
s. Q. Todd Dickinson (1998–2001) |
t. James E. Rogan (December 2001 – 2004) |
u. Jon Dudas (2004 – January 2009) |
v. John J. Doll (January 2009 – August 2009) (acting) |
w. David J. Kappos (August 2009 – February 2013) |
x. Teresa Stanek Rea (February 2013 – November 21, 2013) (acting) |
y. Margaret A. (Peggy) Focarino (November 21, 2013 – January 12, 2014) (by delegation) |
z. Michelle K. Lee (January 13, 2014 – June 6, 2017) |
aa. Joseph Matal (June 7, 2017 – February 8, 2018) (acting) [125] |
bb. Andrei Iancu (February 8, 2018 – January 20, 2021) [126] |
cc. Kathi Vidal (2022–present) |
Prior art is a concept in patent law used to determine the patentability of an invention, in particular whether an invention meets the novelty and the inventive step or non-obviousness criteria for patentability. In most systems of patent law, prior art is generally defined as anything that is made available, or disclosed, to the public that might be relevant to a patent's claim before the effective filing date of a patent application for an invention. However, notable differences exist in how prior art is specifically defined under different national, regional, and international patent systems.
A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing patent applications and oppositions to granted patents.
A patent examiner is an employee, usually a civil servant with a scientific or engineering background, working at a patent office.
A trademark attorney or trade mark attorney or agent is a person who is qualified to act in matters involving trademark law and practice and provide legal advice on trade mark and design matters.
Under United States patent law, a continuing patent application is a patent application that follows, and claims priority to, an earlier-filed patent application. A continuing patent application may be one of three types: a continuation, divisional, or continuation-in-part. Although continuation and continuation-in-part applications are generally available in the U.S. only, divisional patent applications are also available in other countries, as such availability is required under Article 4G of the Paris Convention.
Under United States patent law, the term of patent, provided that maintenance fees are paid on time, is 20 years from the filing date of the earliest U.S. or international application to which priority is claimed.
Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limited time from profiting from a patented technology without the consent of the patent holder. Specifically, it is the right to exclude others from: making, using, selling, offering for sale, importing, inducing others to infringe, applying for an FDA approval, and/or offering a product specially adapted for practice of the patent.
Maintenance fees or renewal fees are fees paid to maintain a granted patent in force. Some patent laws require the payment of maintenance fees for pending patent applications. Not all patent laws require the payment of maintenance fees and different laws provide different regulations concerning not only the amount payable but also the regularity of the payments. In countries where maintenance fees are to be paid annually, they are sometimes called patent annuities.
In United States patent law, a reexamination is a process whereby anyone—third party or inventor—can have a U.S. patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. To have a patent reexamined, an interested party must submit prior art, in the form of patents or printed publications, that raises a "substantial new question of patentability". The Leahy-Smith America Invents Act makes substantial changes to the U.S. patent system, including new mechanisms for challenging patents at the U.S. Patent and Trademark Office. One of the new mechanisms is a post-grant review proceeding, which will provide patent challengers expanded bases on which to attack patents.
The Manual of Patent Examining Procedure (MPEP) is published by the United States Patent and Trademark Office (USPTO) for use by patent attorneys and agents and patent examiners. It describes all of the laws and regulations that must be followed in the examination of U.S. patent applications, and articulates their application to an enormous variety of different situations. The MPEP is based on Title 37 of the Code of Federal Regulations, which derives its authority from Title 35 of the United States Code, as well as on case law arising under those titles. The origins of the Manual date back to a 1920 Patent and Trademark Office Society publication known as the "Wolcott Manual". "One of the most fruitful endeavors of the [Patent and Trademark Office] Society in the area of education was the publication of the first Manual of Patent Office Procedure. The first Manual was written by two employees of the Office and was published in 1920 by the Society. This Manual, with its eight revisions, often referred to as Wolcott's Manual, was the only procedural manual available until 1949 when the Patent Office assumed the publication of the Manual of Patent Examining Procedure."
This is a list of legal terms relating to patents and patent law. A patent is not a right to practice or use the invention claimed therein, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor or their successor in rights in exchange to a public disclosure of the invention.
Jonathan Ward "Jon" Dudas is the senior vice president, senior associate to the president and secretary of the University of Arizona. He previously served as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) until January 18, 2009. He was nominated to the position by former President George W. Bush in March 2004 and appointed in July 2004. Dudas previously served as acting Under Secretary and Director, and Deputy Under Secretary and Deputy Director from 2002 to 2004. He is also a member of the board of directors of Conversant Intellectual Property Management.
The copyright status of the content of patent applications and patents may vary from one legal system to another. Whether scientific literature can be freely copied for the purpose of patent prosecution is also a matter for discussion.
Gottschalk v. Benson, 409 U.S. 63 (1972), was a United States Supreme Court case in which the Court ruled that a process claim directed to a numerical algorithm, as such, was not patentable because "the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." That would be tantamount to allowing a patent on an abstract idea, contrary to precedent dating back to the middle of the 19th century. The ruling stated "Direct attempts to patent programs have been rejected [and] indirect attempts to obtain patents and avoid the rejection ... have confused the issue further and should not be permitted." The case was argued on October 16, 1972, and was decided November 20, 1972.
A patent caveat, often shortened to caveat, was a legal document filed with the United States Patent Office.
A trademark is a form of intellectual property that consists of a word, phrase, symbol, design, or a combination that identifies a product or service from a particular source and distinguishes it from others. Trademarks can also extend to non-traditional marks like drawings, symbols, 3D shapes like product designs or packaging, sounds, scents, or specific colors used to create a unique identity. For example, Pepsi® is a registered trademark associated with soft drinks, and the distinctive shape of the Coca-Cola® bottle is a registered trademark protecting Coca-Cola's packaging design.
Although not clearly defined, the backlog of unexamined patent applications consists, at one point in time, of all the patent applications that have been filed and still remain to be examined. The backlog was said to be 4.2 million worldwide in 2007, and in 2009 it reportedly continued to grow. The United States Patent and Trademark Office (USPTO) alone had a backlog of ca. 700,000 patent applications in 2009. By May 22, 2024 this number grew to 783,134 applications.
The bill H.R. 5108 would establish the Law School Clinic Certification Program of the United States Patent and Trademark Office (USPTO) to be available to accredited law schools for the 10-year period after enactment of this Act.
Andrei Iancu is a Romanian-American engineer and intellectual property attorney, who served as the under secretary of commerce for intellectual property and director of the United States Patent and Trademark Office (USPTO) from 2017 to 2021. He was nominated for both positions in 2017 by President Donald Trump. He left office on January 20, 2021. He is currently a partner in Sullivan & Cromwell's intellectual property & technology practice.
Peter v. NantKwest Inc., 589 U.S. ___ (2019), was a United States Supreme Court case from the October 2019 term.