Last month, Sen. Thom Tillis (R-NC), the Ranking Member of the Subcommittee on Intellectual Property of the Senate Committee of the Judiciary, wrote to the Administrative Conference of the United States (ACUS) to request that the agency "conduct a study on whether Congress should create a unified, stand-alone, and independent Intellectual Property Office." ACUS is an independent agency of the U.S. government, which was established in 1964 by the Administrative Conference Act, and which conducts research and issues reports concerning various aspects of the administrative process and, when warranted, makes recommendations to the President, Congress, particular departments and agencies, and the judiciary concerning the need for procedural reforms.
Stating that "[t]he current fractured approach to intellectual property (IP) in the federal government, with multiple IP functions housed in different agencies, leads to conflicting policy agendas and unnecessary bureaucracy," Sen. Tillis (above right) noted that he was exploring the possibility of creating an independent agency that would unite the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office (USCO), and perhaps also the Intellectual Property Enforcement Coordinator and other relevant IP functions located in other agencies. The Senator indicated that he believed that "a single, Senate-confirmed, presidentially appointed Director should lead such an office and that it should have, at a minimum, separate Commissioners for Patent, Trademark, Copyright, and Policy Coordination that would report to the Director." Before pursuing legislation to create a single agency, however, Sen. Tillis suggested that ACUS should contract with the USPTO and USCO to study the issue.
In his letter to ACUS, Sen. Tillis set out three issues to be studied. First, he suggested that ACUS look at different funding models, and in particular whether, if created, the U.S. IP Office should be fully fee-funded (as the USPTO is), be funded from fees and appropriations (as the USCO is), or whether some variation of a hybrid fee-funded and appropriations model should be used. Sen. Tillis also indicated that "it is imperative that the IP Office have a reserve fund to provide continuity in operations, similar to the USPTO's current reserve."
Next, Sen. Tillis suggested that the study should involve an assessment of the key functions of a unified office, and how a unified office would perform such functions. The Senator's letter set out fifteen possible functions on which ACUS, in consultation with the USPTO and the USCO, should focus:
1. Granting and issuing of patents, and related recordations of assignments, grants, or conveyances.
2. Federal registration of trademarks, and related recordations of assignments, grants, or conveyances.
3. Registration of copyrights, related recordations, and licensing programs.
4. Providing information to the public about intellectual property.
5. Advising the President, Congress, Courts of the United States, and other Federal departments and agencies on national and international issues relating to intellectual property, other matters arising under the intellectual property laws, and related matters.
6. Conducting evidence-based studies regarding intellectual property and other matters arising under the intellectual property laws, or the administration of the Office.
7. Conducting educational programs for other federal agencies, members of the public, or cooperatively with foreign intellectual property offices and international intergovernmental organizations.
8. Representing the United States in international fora and negotiations on intellectual property matters.
9. Issuing rules and regulations, as needed, regarding intellectual property.
10. Participating in meetings of international intergovernmental organizations, and meetings with foreign government officials, relating to intellectual property, other matters arising under the intellectual property laws, and related matters.
11. Performing such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth under the intellectual property laws.
12. Engaging directly with the public, including underrepresented communities, on intellectual property issues to appropriately balance diverse interests.
13. Providing administrative tribunals, such as the Copyright Royalty Board, the soon to be operational Copyright Claims Board, the Trademark Trial and Appeal Board, and the Patent Trial and Appeal Board. For example, the Copyright Office's Licensing program collects royalty fee payments and assists in the administration of certain statutory licensing provisions that are fully supported by its collection authority.
14. Funding for Public Advisory Committees: including the Patent Public Advisory Committee, a Trademark Public Advisory Committee, a Copyright Public Advisory Committee, and a Policy, Training, and Outreach Public Advisory Committee.
15. Any other functions that are deemed necessary or desired for the intellectual property office of the future.
Finally, Sen. Tillis suggested that ACUS make an assessment of the functions being performed by both the USPTO and USCO that could be streamlined by the creation of a single IP office.
In concluding his letter, Sen. Tillis requested that the study be completed no later than February 1, 2023.
