USPTO Fee Setting Authority and PTAB Institution Reform

by Dennis Crouch

USPTO's fee setting authority is set to expire on September 16, 2026.  The Senate passed a continuing resolution for a short extension - to December 11, 2026 (after the mid-term election).  Congress will almost certainly extend the authority because it has been a major success.  The key questions are (1) whether it will again include a sunsetting provision; and (2) whether it will have additional strings attached.

The most focused potential tie-in relates to USPTO Director's thus-far unreviewable discretionary authority to deny IPR and PGR institution.

There is also some focus the agency's use of fee structure as a tool to encourage or discourage certain activity, such as filing repeat RCEs or repeat Continuations or "excess" claims.

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