On 19 December 2012, the U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (77 Fed. Reg. 75019) issuing the Office’s final rule implementing the micro entity provision of § 10 of the Leahy-Smith America Invents Act (AIA).
Applicants who qualify under this new status will be entitled to a 75% reduction in many of the fees associated with the patent procurement process, include filing, issuance, appellate and maintenance fees. The process for establishing micro entity status will be similar to the current process for small entities. (Note: Small entities already receive 50% reduction on many fees.)
The AIA provides for a new 35 U.S.C. 123(a) and (d) provide the bases under which an applicant may establish micro entity status.
Under 123(a), an applicant qualifies as a “micro entity” if the applicant:
- qualifies as a small entity as defined in 37 CFR 1.27;
- has not been named as an inventor on more than four previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications for which the basic national fee under 35 U.S.C. 41(a) was not paid;
- did not, in the calendar year preceding the calendar year in which the applicable fee is being paid, have a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census; and
- has not and is not under an obligation by contract or law to assign, grant, or convey a license or other ownership interest in the application concerned to an entity that doesn’t meet the income criterium above.
Under 35 U.S.C. 123(d), a micro entity shall also include an applicant who certifies that:
- the applicant’s employer, from which the applicant obtains the majority of the applicant’s income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or
- the applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application to such an institution of higher education.
Though the final rule has yet to be entered, it is expected that the micro entity fee reduction will be available to applicants by 16 March 2013.