Transition Document for the United States Patent and Trademark Office
This transition document provides over 25 actionable recommendations on the future of the United States Patent and Trademark Office (USPTO), in order to support future federal leadership and enable their success. The document is the result of collaboration between the Day One Project and a group of veteran policymakers who convened virtually to produce recommendations related to the following three categories:
Identifying specific policy and governance ideas that can be pursued in the first days and months of the next administration.
Gathering “lessons learned” from those who have previously served in government to learn from past challenges and better inform future initiatives.
Understanding key science and technology staffing and “talent” needs, and related challenges for the USPTO that can be addressed in the next administration.
The document also includes a cover memo which highlights some of the overarching key considerations for the future of the USPTO.
Margo A. Bagley
Colleen V. Chien
Mark Allen Cohen
Philip G. Hampton
David J. Kappos
Arti K. Rai
Teresa Stanek Rea
Robert L. Stoll
A. Christal Sheppard
Key Considerations for USPTO in the Next Administration
Cover Memo by Justin Hughes
Tracing its history back to the 1790 Patent Act, the U.S. Patent and Trademark Office (USPTO or PTO) is the federal agency for granting patents for inventions – exclusive rights that provide an incentive for private research and development as well as for the commercialization of new technologies. The agency also provides federal registration of trademarks, promoting an integrated national economy in which goods and services are readily identifiable to consumers. Federal law also provides that USPTO “shall advise the President, through the Secretary of Commerce, on national and certain international intellectual property policy issues” and “advise Federal departments and agencies on matters of intellectual property policy in the United States and intellectual property protection in other countries.”
USPTO is among the few federal agencies that is funded by user fees and agency revenue (in the form of patent and trademark application and maintenance fees) closely tracks the overall performance of the U.S. economy.
PTO's mission is “to foster innovation, competitiveness, and economic growth, domestically and abroad, by providing high quality and timely examination of patent and trademark applications, guiding domestic and international intellectual property (IP) policy, and delivering IP information and education worldwide.”
Beginning with one clerk in the 1803 “Patent Office” of the State Department, USPTO is now an agency of the Department of Commerce with an annual budget in excess of $3.4 billion and over 13,000 federal employees including patent examiners, trademark examining attorneys, computer scientists, policy experts, litigators, economists, and administrative staff. The agency operates from its main campus in Alexandria, Virginia with satellite offices in Dallas, Denver, Detroit, and San Jose as well as “IP attaché” staff in 12 U.S. embassies and consulates.
This document presents key insights from a group of intellectual property experts, most of them USPTO veterans. Observations, proposals, and suggestions presented here were discussed in a workshop setting but are not the result of a consensus process; indeed, some suggestions may be in tension with other suggestions. Many workshop participants supported trying some ideas only in “pilot” form, something that is possible at USPTO because of the size and scope of its operations.
As the next administration begins, perhaps the most basic idea for USPTO is that intellectual property policy will continue to be characterized by the need to achieve balance. To foster technological progress, the patent system must balance incentives for innovation with access to new technologies. On the trademark side, effective federal protection of trademarks used in interstate commerce promotes a cohesive, efficient national market but must be balanced against the communication needs of new market entrants and free expression generally. Internationally, the U.S. retains a tremendous competitive advantage in ‘information goods,’ an advantage that depends on effective enforcement of intellectual property laws in other jurisdictions. At the same time, U.S. policy—both domestic and international—seeks to improve access to patented medicines as well as dissemination of technologies to address climate change and environmental protection.
Intellectual property policies—including both substantive patent law and USPTO operations—should do a better job in maintaining and further America’s technological preeminence and, in that way, reinforce Biden Administration initiatives, ranging from enhanced R&D investment to serious and sustained “Buy American” initiatives.
In that context, it is clear that continued efforts to improve and maintain patent quality will be USPTO’s most important day-to-day contribution to America’s innovation economy. Many of the proposals below address that perennial policy challenge.
Workshop discussants also emphasized the need to make America’s innovation economy —and the opportunity that arises from intellectual property rights—more accessible to all Americans. Some proposals below are aimed at better understanding and/or addressing gaps in innovation economy outcomes correlated with gender, race, ethnicity, veteran status, or sexual orientation.
Finally, as the new administration works to return to collaborative efforts with America’s allies and positive engagement in international institutions, USPTO should lead in constructive engagement on international intellectual property issues, whether at the World Intellectual Property Organization, in regional fora, or in bilateral relations, including with China.
The varied proposals and suggestions below highlight opportunities for PTO to move forward with a clear charge on Day One.