Why the DOGE Should Take Aim at the USPTO

“If Musk and Ramaswamy are serious, ‘Patent Durability’ is the USPTO solution they need to be concerned with.”

Donald Trump’s appointment of Elon Musk and Vivek Ramaswamy to head the new Department of Government Efficiency (DOGE) has given hope to many people who are impacted by inefficiency in government. One such group is American inventors, who seem to have been forgotten this election cycle in the midst of all the talk concerning those impacted by the Departments of Education and Labor.

American inventors rely on the United States Patent and Trademark Office (USPTO), which from the outside looks efficient, at least, because it does not draw funding from Congress. An inside look, which Americans voted for in November, reveals a USPTO that is fraught with inefficiency. The consequence is that American inventors and their businesses rarely receive just compensation from users of their technology, and are easily preyed upon by outside actors.

The Cost

Anyone who has ever sought a U.S. utility patent, or represented someone seeking a U.S. utility patent, is familiar with filing, prosecution, and maintenance fees charged by the USPTO. These fees make up 40% to 60%of the overall costs associated with U.S. utility patents. Every inefficiency in the U.S. patent system starts with these fees, and it is derived from the fact that inventors pay the exact same fees for entirely different inventions, as if a slightly new mousetrap and a revolutionary new rocket ship have the same impact on the business world.

This means that patents for both the slightly new mousetrap and the revolutionary new rocket ship each have the exact same protections. For inventors of the slightly new mousetrap, which may be worth $50,000, as well as indigent inventors, it means they are barred from the U.S. patent system because the all-in costs to procure (e.g., not even enforce) a U.S. utility patent are about $15,000-$23,000 for micro and smaller entities, and $23,000-$30,000 for larger entities.

For inventors of the revolutionary new rocket ship, which may be worth $50 billion, it means they have insufficient tools to enforce their rights.

One way to see the problem is by comparing the U.S. patent system to medicine and the insurance industry. In medicine, doctors don’t prescribe the same medications to treat diabetes and cancer. They prescribe insulin to diabetic patients and chemotherapy to cancer patients. In the insurance industry, agents don’t issue life insurance policies with the same premiums to all insureds. They account for heart conditions and past histories of smoking. In both instances, there is a critical tailoring that occurs in order for the goal to be achieved.

The USPTO has no such tailoring – it has uniformity in all things money, and American inventors are suffering as a result. There is a solution to this problem, and if ever there were a time for it to be implemented, the time is now, with Musk and Ramaswamy.

The Solution

The solution is “Patent Durability”, which would allow American inventors to bargain for individual elements of their patent protection with the USPTO, and in exchange pay a proportionate amount in all USPTO fees via an actuarial process. This means that inventors would be able to bargain for less durable patent protection (e.g., via caps on patent term, future damages, future assertion power, and numbers of as-filed claims) and pay reduced USPTO fees, and also bargain for more durable patent protection (e.g., via increased Inter Partes Review institution fees, and relaxed patent eligibility standards) and pay increased USPTO fees. Values for these elements (and there could be more) would be fed into a Patent Durability calculator, which would output a USPTO fee schedule via an actuarial process. The Patent Durability calculator would decrease fees for less durable elements and increase fees for more durable elements, all with a newly imparted tailoring to patents. That is, the durability, or strength, of U.S. utility patents and all USPTO fees (and attorney fees) would be tailored to the value of inventions.

Give Patents Power Again

Giving this power to American inventors would cause more patents to issue, which would reveal more technical disclosures to the world. It would also cause each new patent to be issued and enforced with far fewer back and forth communications between inventors, attorneys, patent examiners, and judges. And if Musk’s technical capabilities were employed with the USPTO’s adoption of a Patent Durability calculator, patents might even be issued, enforced, and expired so dynamically that they would function like the internet to facilitate trade between inventors and users of technology, who at present are spaced very far distances from one another in an intellectual commerce sense.

This means that inventions would spend far less time on hard drives of inventors, where they are currently ripe for the picking. It means inventors and their businesses would receive just compensation for inventive efforts, and would not be preyed upon by outside actors.

If Musk and Ramaswamy are serious, Patent Durability is the USPTO solution they need to be concerned with. American inventors are counting on it.

Image Source: Deposit Photos
Author: garagestock
Image ID: 133247770

John Powers John Powers is the Founder of The Powers IP Law Firm. As an attorney, the majority of John’s time has been devoted to patent procurement, or, getting patents for clients. [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

14 comments so far.

John Powers
April 4, 2025 03:14 pm
@ Gerald H.

I appreciate your points, especially about the DOGE and Congress. I’m more concerned with the “root cause” – the same patent being used to protect ALL inventions. As for the fallout of this solution being implemented, to me it is more like surgery – there will need to be healing afterward, but eventually the body will be better than before. Look me up if you want to continue the conversation. I’d be happy to chat. All the best.
Gerald H.
March 30, 2025 04:09 am
@John Powers
I think there are a lot of solutions in search of problems. DOGE of course is an example of that, but so is the Patent Durability theory. Truth is, a byproduct of a free society and capitalism is that there are winners and losers, producers and parasites. Sometimes the producers are winners, but any combination is possible, unfortunately. But where well intended solutions fundamentally go wrong is not addressing the root cause. If the problem is trying to fix the litigation burden of inventors, address the law that has not kept up with the tines (i.e. thats Congress). If fixing a flaw in the USPTO operating procedure or its efficiencies, address the mandate (again, thats Congress). If a solution would solve one problem, but creates a dozen of others, as with ideas proposed in the article, then it addresses a symptom, not the root-cause(s) . These are inherently legal inadequacies, based in how the laws are crafted, executed and then litigated. Start with Congress. Every time.
PS, anyone not frustrated with, or outright disgusted by, DOGE must not understand what DOGE is doing, or what a government is and who it is for (Its ours, its for us to serve us). Thats not a political statement, its just objective observation in the context of reverence for our American Experiment.
John Powers
March 24, 2025 04:38 pm
@Gerald H. I hear your frustration, much of which seems to be with the DOGE itself.
Putting the DOGE aside, the problem here is that doctors don’t address diabetes with chemotherapy. They do it with insulin- in very specific doses, tailored to the specific way that diabetes manifests in the individual patient.
In a similar context, we’re not going to tell a life insurance agent that they shouldn’t take an applicants history of smoking into account when calculating their premium.
Giving every single inventor the power to sue large numbers of defendants for $600m dollars each time, is where real waste winds up in the patent system- especially when you consider that most inventions aren’t actually worth more than $15m.
On the flip side, not giving inventors all of the powers they need- but instead, forcing them to get 100 patents on a “rocket ship,” when one or two tailored patents would do the job, is what leads many inventors to rightfully conclude that the patent system is wasteful.
Gerald H.
March 22, 2025 06:38 pm
This post is not only misinformative, it isn’t aging well.
1) The USPTO is not a “Law Enforcement” agency. Any infringements or dsputes are handled in civil courts. Also, PAF provides some protection.
2) Determining the value of an invention is a) at best subjective but in truth impossible because it requires predicting the future, b) going to require much more bureacracy if it was possible and c) ultimately meaningless if the invention does not end up being worth what was predicted.
3) The analogy of the “Rocketship” is also ridiculous because anything that complex and innovative would have hundreds to thousand of patents to protect that much new IP. Patenting the final product offers no real protectionis if its basis is the cumulative inout of many inventions. This assessment is based on real world knowledge, some of which involves “rocketships”.

4) Now we get to DOGE. Lets start with the premise of Efficiency, which when boiled down is increasing the value to cost ratio – it could entail lowering operational costs, faster delivery, better quality, etc so long as the ratio improves. We now know that DOGE uses a speed+chainsaw apporoach without regard to final functionality of the agencies, the resulting “efficiency” or anything to do with making the Government better or cheaper. DOGE is an amateur’s ignorant pipedream turned into a political amusement park, hijacked into a distraction. Moreover, they are utilizing ZERO proven efficiency techniques. It seems like they are doing to the USG what Musk did to Twitter, which was take a $40B profitable company and make it a $9B inefficient unprofitable company.

I get the ideas behind the sales pitch of making Government more efficient. The problem is that it was never based in objective facts, nor was there a plan. Our federal civilian workforce is the same as it was in 1970(+-3%). However, the GDP has tripled, the population has increased 68% and Congressional spending has quadrupled. Much of the spending increase is in outsourcing services, new Military exoenses and Social Security. If anything, the Government has become more efficient during that time and Congress is at the root if the problem. The President has sole veto authority over that spending. Thats the Constitutional remedy.

Last point, USPTO is essentially a profitable agency, it takes no money and gives money to Congress for use elsewhere. What they are doing to the USPTO as I write this note is going to reduce the surplus revenue USPTO gives to Congress each year, reduce innovation, reduce investment in patentable ideas and cause there to be less taxable revenue long term, so any reduction in spending is accompanied by a doubled reduction in revenue and taxable earnings.
John Powers
January 27, 2025 02:19 pm
@ Don Baker – I hear your frustration – most small business inventors never recover what they are owed. However, in my experience representing small businesses, the two reasons why the overwhelming majority (possibly excluding Dr Norred, although he would have other options with the Patent Durability mechanism to have protected him – mechanisms which would have pushed him through the courts faster) do not recover is because 1) the prosecution and litigation costs are too high; and 2) the process takes too long. The inefficiencies I’ve highlighted would significantly drop the USPTO and legal costs for small businesses, and also shorten the process. There’s no other way to protect small business inventors than to make the system affordable, and to get them through it faster (i.e., fewer back and forth communications across the board). And regarding the DOGE – there is nothing magical about it – it is simply a vessel to bring changes to Congress, who is elected.
Don Baker
January 27, 2025 12:55 pm
So – we small inventors should expect the billionaires and political cronies who control the non-constitutional, unelected, un-legislated DOGE to look out for us?

Can you say “magical thinking”?

Then there’s the dark side, as reported by Scott Eden in “The Greatest American Invention”, Popular Mechanics, Jul/Aug 2016, pp 92-99. It details how the AIA was lobbied into being by large tech companies to deal with patent trolls, those who collect and file patents to sue deep pockets companies without ever producing a single product themselves. And how this has affected the small inventor, who has long been at the mercy of large companies with lots of lawyers, now even more so.

It tells the story of one Dr. Troy Norred, who filed patent 6,482,228 in 2000 on a replacement aortic valve, which currently accounts a 1.5 billion dollar annual market. And for which Dr. Norred receives not one penny or (until 2016) a word of recognition. It tells how Dr. Norred spent years and hundreds of thousands of dollars, first trying to get his device into production, and then defending it from industrial poachers. The other kind of patent troll, those companies with lawyers on staff who troll for patents to poach, and then use those lawyers to deny the benefits of those patents to the actual inventors.

Dr. Norred could spend all that money asserting and defending his patent, in vain, because he had a medical practice to support his passion. Other small inventors are not so fortunate, and can beggar themselves trying to do the same, if they do not already live in poverty, hoping to get off the dole by the sweat of their brains.

See also: http://android-originals.com/tulsasound/2016/06/24/the-dark-side-of-the-america-invents-act/
John Powers
January 24, 2025 03:31 pm
Thank you all for taking the time to read and consider my proposal.

@Curious / @ Pro Say – so you’re saying allowing small entity inventors to pay $4,000 less for a cap on future damages / future assertion power, and another $2,000 less (plus attorney fee reductions) for a claim total cap (with a relaxed doctrine of equivalents standard) would not favor a small business? Seems unlikely.

@Don Baker – so damage caps / assertion power caps / claim total caps mean more work for attorneys?

@Scott – While the fees do cover operating costs, what they pay for varies. The rocketship is a much bigger and more powerful piece of property than the mousetrap. It should cost more to purchase because the remedy it will have in the marketplace is more substantial. It’s a higher premium medicine for a higher risk disease. Medicine does not all cost the same, at least in America. And of course all inventions are between the rocketship and mousetrap – more the reason for a sliding scale of these pieces of property. To your last point – sophisticated, but simple legislation is needed to change the patent bundle from having fixed rights to variable ones – it’s the only way the patent mechanism can facilitate the exchange of inventive efforts for compensation from users.

@Ettienne – Is treating a cancer patient with insulin instead of chemotherapy, as the USPTO does with its patents, sane? I would argue that philosophy is what is unhinged.
Ettienne Burkes
January 15, 2025 06:34 pm
This is an unhinged article. Speaking of DOGE as if it were an actual federal agency makes you look not only uninformed but also ignorant.
IamI
January 15, 2025 06:06 pm
Josh, your hot takes on here lately are becoming unhinged. Suggesting the PTO shut down (therefore not doing its constitutionally mandated duty) until some pie in the sky, DOGE adjacent idea is implemented, is insane.

Expecting DOGE to do *anything* that they’ve “promised” is sheer lunacy anyway.
Scott
January 15, 2025 12:09 pm
The fees cover the USPTO’s operating costs. So, on average, does it actually cost the USPTO more resources to examine, issue and maintain a patent for a rocket ship than a mouse trap? If not, then why should an applicant pay a different fee? The USPTO has no control over the value of patents — those are determined by the market and by the patent owner’s willingness or ability to bring products to the market.

I also note that the vast majority of applications fall somewhere between the revolutionary and the mundane — they are not a rocket ship, nor are they a slightly better mousetrap.

Also, you gave an example in a previous article that an Applicant can get a lower application and maintenance fee by capping damages associated with a given patent at the time of filing. Is this a legally binding agreement? Who enforces it, and is it within the PTO’s authority to demand caps on patent damages? What happens if the patent owner breaks this agreement? Do they then have to pay more fees to the USPTO? How does the PTO collect on these fees?
Don Baker
January 15, 2025 09:23 am
Of course an attorney would want to be paid to argue more.

We small inventors have a hard enough time with the USPTO as it is, without having to hire a lawyer just to negotiate fees. And as the invention of the lowly transistor demonstrates, no one can prove ahead of time just how what impact an evolving technology will have on society.

I think the most I ever made as an engineer was less than $25 an hour. Attorneys expect to be paid about ten times that. Wouldn’t it be cheaper and more efficient to have engineers write the MPEP, based on arguments commonly used and accepted in Engineering Schools?
Pro Say
January 14, 2025 06:47 pm
What Curious said.

Respectfully, such a regime would open yet another messy can-o’-worms for those least able to obtain — and protect — a patent for their invention.
Curious
January 14, 2025 04:42 pm
I’m not sure why you are appealing to a non-existent agency (and one that is unlikely to ever come into existence) to address an issue using means that only Congress could implement.

If Congress cannot get their act together to fix 101, what makes you think they could craft the complicated kind of mechanisms needed to create this “Patent Durability” regime.

Moreover, this “Patent Durability” regime seems not to favor small-time inventors — i.e., people who don’t have the experience/knowledge to accurately access the value of their inventions and consequently make the right decisions as to how best to protect it — but would rather favor large filers who would be able to invest the time/money in determining how to best game the system for their own benefit.

Ultimately, upfront USPTO fees are typically a small part of the overall costs for obtaining a patent — particularly for a small/micro entity. Rather, the big costs are attorney fees, which this proposal does not address. The big USPTO fees are maintenance fees and an inventor (experienced or not) should have a much better feel for the value of his/her invention when those fees come due.
Josh Malone
January 14, 2025 12:45 pm
Great concept. Everyone needs to get on board with patent durability. I suggest the USPTO stop production until a solution is put in place. Spitting out 6,000 patents of indeterminate validity every Tuesday extremely damaging to innovation and industry.