The U.S. Patent and Trademark Office (USPTO) released final rules for micro entity status, as authorized by the America Invents Act (AIA), 77 Fed. Reg. 75,033 (2012). Patent applicants filing under micro-entity status would benefit from a 75 percent reduction of certain Patent Office fees, including fees for filing, searching, examining, issuing, appealing and maintaining the application. The rules regulating micro-entity status are set forth in 37 C.F.R § 1.29. Procedures for claiming micro-entity status, paying micro-entity fees, notification of loss of micro entity status and correction of payments of erroneously paid micro-entity fees are included in the rules. The new rules take effect on March 19, 2013, before fee reductions begin, however, the USPTO must first set fees in accordance with section 10 of the AIA.
According to the rules, a party requesting micro-entity status must file a certification of entitlement to micro-entity status and must qualify for small entity status under 37 C.F.R. § 1.27. A micro-entity inventor or applicant can not have been named on more than four previously-filed U.S. non-provisional applications and could not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have had a gross income exceeding three times the median household income for that preceding calendar year. According to the rules, an applicant is not considered to be named on a previously filed application for the purposes of micro-entity status if the applicant has assigned or is under an obligation to assign all ownership rights in the application as a result of the applicant’s previous employment. In addition, an applicant who is an employee of a non-profit institution of higher education, from which the applicant receives a majority of his or her income, would be considered a micro entity.
In order to qualify for micro-entity status, each applicant and any other party holding rights in the application must qualify for micro-entity status. Further, micro-entity status must be established in each related, continuing and reissue application for which such status is desired. The USPTO plans to rely on applicant’s certification of micro-entity status and does not plan to provide advisory opinions on whether a particular entity is entitled to claim micro-entity status.
Micro-entity status, once established, remains in effect until changed by applicant. Applicant should determine each calendar year whether micro-entity fee status is warranted, as applicant’s gross income and the median household income each may change from year to year. If applicant is no longer eligible for micro-entity status, the applicant must file a notification of a loss of entitlement to the micro-entity status prior to paying any fees after the loss of entitlement occurs. An inadvertent, improper payment of a micro-entity fee must be corrected. A fraudulent payment of micro-entity fees would be considered a fraud on the USPTO.