We continue to monitor patent reform including provisions of particular importance to the nanotech and cleantech innovation ecosystems. Some of these new provisions are seemingly small points. Nevertheless, they may be representative of larger issues and problems. For example, Section Ten of H.R. 1249, the core legislative document at the center of the current patent reform, establishes a new feature of the PTO fee structure for so-called micro-entities. Micro-entities receive a 75% fee discount. This micro benefit supplements the prior small entity designation which will continue under H.R. 1249 and provides a 50% discount. The complexity of the Section 10 provision, however, appears to be anything but small and micro. The legal trend seems to be that the smaller the entity, the larger the complexity.
Variables to consider in coming to a complete understanding of the new micro-entity provision include gross income, median household income (as reported by the Census Bureau), prior employment, foreign currency exchange rate (as reported by the IRS), and the Higher Education Act of 1965. How much legal analysis and cost will be needed to achieve the micro-entity status in good faith? Universities and colleges, as well as individual inventors, appear to be targets of the new provision.
This is but a small provision of patent reform (no pun intended). However, this small provision is representative of larger trends and problems with respect to patent law. Sometimes, we have observed from patent law changes in the past two decades that the patent system appears to generate significant complexity in trying to "be fair." Examples include small entity and Patent Term Adjustment. However, the added complexity is not welcome in many quarters. We dialog with inventors and applicants that, as we hear them, primarily desire for a simplification of the patent system.
The new micro-entity provisions are not unique to nanotech or cleantech. But the nanotech and cleantech ecosystems comprise heaving inputs from the universities. Hence, the provision is important.
Also, the new micro-entity provision is not a new idea. We easily found PTO proposals for this dating back to 2002.
Lord knows what complexity will happen when someone in the future proposes the next phase of reform, supplementing small entity and micro-entity, perhaps proposing the increased complexities of a nano-entity?