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While there is a strong affirmative case for a patent and trademark corporation, the road to implementation may prove long and demanding of sustained effort, to wit:
1. A charter carefully designed to meet PTO needs must be drafted.
The merits of incorporation and the principal provisions of the charter must be understood and accepted by PTO management, organized and unorganized employees, the Secretary of Commerce, the President and OMB, the most concerned committees of Congress, and the users of the Nation's patent and trademark services.
There must be skillful implementation of the charter once it is enacted.
The principle has been accepted that the PTO should be financed, at least in major part, by user fees. Given present budgetary restraints, further steps toward making the PTO wholly self-sustaining would appear to be inevitable regardless of whether or not the Office is converted to a government corporation. Users would be expected to pay the costs without receiving the benefits which would result from establishment of a corporation.
The actual conversion of the current PTO to a corporation should not involve significant disruption of ongoing operations or entail much in the way of costs. This is because the basic programs administered would not be greatly altered and the affected employees would continue to carry out their responsibilities with little immediate change. Within a short time the efficiencies inherent in the corporate form of organization will more than offset the costs associated with bringing about the change.
A special effort should be made to secure the support of the President and his administration. Such support would make possible a concerted effort to secure the early enactment of a suitable charter for a PTO
In June 1985 NAPA issued a report entitled "Organization for Protection of Intellectual Property Rights." Among other things, that report discussed briefly the possibility of establishing the U.S. Patent and Trademark Office as a government corporation.
The report stated that government corporation status would provide the Patent and Trademark Office with operating and financial flexibility. It was suggested that users of Patent and Trademark Office services would receive better service from a government corporation.
Intellectual Property Owners, Inc. (IPO) represents companies, universities and individuals who file a significant portion of the patent and trademark applications that are filed in the United States. We are interested in having the Patent and Trademark Office operate as effectively as possible.
Although the Board of Directors of IPO has no position on whether the Patent and Trademark Office should be established as a government corporation, we would like to develop more information on the subject. We have discussed with NAPA staff members the possibility of NAPA preparing a report for IPO that would provide an in-depth analysis and discussion of the advantages and disadvantages establishing the Patent and Trademark Office as a government corporation.
We do not have the expertise to be able to list all of the questions that should be addressed in such a report, but some illustrative questions should show the kind of report we envision.
A NONPROFIT ASSOCIATION REPRESENTING PATENT, TRADEMARK AND COPYRIGHT OWNERS
INTELLECTUAL PROPERTY OWNERS, INC.
Mr. Ray Kline
July 29, 1988
For instance, what are the features of the Patent and Trademark Office that make it more suitable for government corporation status than other government agencies? there existing government corporations that NAPA could suggest models for the Patent and Trademark Office? What are some government corporations that are not suitable models?
What types of increased financial flexibility can be achieved? an important advantage to have authority to issue bonds, and to be able to operate with a business-like budget having such features as depreciation reserves. Would it be necessary for the Patent and Trademark Office to be 100 percent user fee supported in order to be a government corporation? Could the corporation be exempt from government employment ceilings and limitations on employee travel expenditures? Is it likely that a PTO corporation could compensate top executives and shortage category employees at higher rates than provided in the regular Federal government salary schedules?
What types of increased operating flexibility can be achieved? likely that the government corporation could adopt personnel and procurement policies that could be more efficient than those used by regular federal agencies? What rules would or should govern labormanagement relations in a PTO corporation? Could it be assured that employees would not have the right to strike? Could the corporation's employees have immunity from suit?
How would the Commissioner of Patents and Trademarks and other top officials of the Office be appointed and removed from office? Can a government corporation exercise all of the intellectual property policy-setting authority that is now possessed by the Patent and Trademark Office? If not, what would be the relationship between the Patent and Trademark Office corporation and other government officials who would have responsibility for policy-setting? Can the head of a government corporation engage in international negotiations?
Could the corporation have a governing body with members from the private sector? Could it have an advisory board of private sector members which would be more than a rubber stamp for decisions of government officials?
What would be the advantages and disadvantages of having the government corporation be independent from the Department of Commerce?