By Donald
Zuhn —

Last week,
the U.S. Patent and Trademark Office 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. 
The notice concerns rules changes that provide procedures for claiming micro
entity status, paying patent fees as a micro entity, notifying the Office of
loss of micro entity status, and correcting fees paid erroneously in the micro
entity amount.  According to the notice,
the rules changes implementing the micro entity provision of the AIA will take
effect on Tuesday, March 19, 2013 (the first-inventor-to-file provisions of AIA
§ 3 take effect on Saturday, March 16, 2013).

With respect
to the payment of fees as a micro entity, the notice indicates that "[c]ertain
patent fees set or adjusted under the fee
setting authority in the AIA will be reduced by seventy-five percent for
micro entities" (emphasis added). 
In other words, as the notice explains, "[t]he micro entity
provisions of 35 U.S.C. 123 are currently in effect," but "no patent
fee is currently eligible for the seventy-five percent micro entity reduction
as no patent fee has yet been set or adjusted under section 10 of the
Leahy-Smith America Invents Act."  Thus,
under the AIA's fee setting authority provisions, micro entities would have to
wait until 45 days after the Office issues its final rule on the fee schedule to
obtain the benefit of a 75% reduction in fees. 
Given the effective date for the rules changes implementing the micro
entity provision of the AIA, a final rule on the new fee schedule is likely to
be published prior to February 1, 2013.

As for the
rules changes, the notice indicates that a provision is being added to the
rules that specifies the requirements to qualify as a micro entity, and that
this provision tracks the statutory requirements for a micro entity set forth
in § 10 of the AIA.  The notice also
indicates that the provision also specifies procedures relating to micro entity
status that largely track the regulatory requirements and procedures in 37 C.F.R.
§ 1.27 for small entity status.  In
particular, applicants claiming micro entity status will be required to file a certification
of entitlement to micro entity status (for which forms will be provided by the
Office).  Such certification will only
need to be filed once in an application — although an applicant must be
entitled to such status on the date that any fee is paid.  Procedures for notifying the Office of loss
of micro entity status and correcting payments of patent fees paid erroneously in
the micro entity amount will track the corresponding small entity provisions
for notifying the Office of loss of small entity status and correcting payments
of patent fees paid erroneously in the small entity amount.

While the
notice states that "[t]he Office does not plan to provide advisory
opinions on whether a particular entity is entitled to claim micro entity
status," the notice provides some discussion of the requirements contained
in 35 U.S.C. § 123 at pages 75021-22.  A
discussion of the specific rules changes is provided next (at pages 75022-25),
and is followed by comments submitted in response to the Office's notice of
proposed rulemaking (see "USPTO
Issues Proposed Rules for Implementing Micro Entity Status")
and the Office's responses to those comments.