For the last decade and a half Congress has used governmental patent fees paid by inventors as its personal piggy bank. Fees at the United States Patent and Trademark Office continue to rise, but instead of using the money to pay for more Examiners, Congress funnels this money right out the back door of the Patent Office. How much you ask? Well, according to Senator Orrin Hatch, since 1992, Congress has diverted over $800 million dollars in patent fees to pay for completely unrelated programs. Senator Hatch’s words echo the sentiments of inventors across the country: “At a time when our economy needs support, it seems doubly wrong to levy what amounts to a tax on innovation, a tax imposed by taking a portion of the fees America’s innovators and businesses pay to secure protection for their economy-generating products and services and spending it on unrelated government programs.”
In 2001, inventor Miguel Figueroa filed a class action lawsuit against the United States arguing the imposition of extra fees for unrelated Congressional spending is patently unconstitutional and demanding the return of the nearly one billion dollars in overpayments. Despite agreeing that the current patent fee regime is misguided and creates the wrong incentives, the United States Court of Federal Claims, in Figueroa v. United States, No. 01-457C, ruled against Mr. Figueroa on the issues of unlawful taking and illegal taxation.
Last month, on April 4, 2006, the U.S. Court of Appeals of the Federal Circuit (CAFC) heard arguments in Mr. Figueroa’s appeal of the lower court ruling. You can listen to the audio of the arguments here. The CAFC’s decision in this case will profoundly affect every inventor and everyone who intends to used patented inventions in the future. If the CAFC rules against Mr. Figueroa, Congress will have the ability to continue to increase the backlog of patent applications at the Patent Office, continue to decrease funding for the Patent Office and continue to increase fees paid by inventors.
It is time to consider the contributions inventors make to this society. It is time to consider the reason our forefathers so highly regarded the role of inventors so as to include specific protections for inventors directly in the Constitution itself. The miniscule short term fix afforded by this pilfering from inventors pales in comparison to the innovation stifled and the inventions that will never see the light of day. The CAFC truly has before it a decision for the ages. Let us hope this court is imbued with the Constitutional fortitude to give our children the advantages the framers of the Constitution so selflessly afforded us.