Heath Hoglund, a patent attorney in Puerto Rico, and Robert Rines, an inventor and attorney, are carrying the good fight that Congress acted unconstitutionally when it diverted patent fees to fatten the coffers of other government agencies. Obviously, snitching funds from the patent office for general governmental revenues doesn't exactly "promote the progress of science and useful arts" by securing inventors' rights, as defined in the constitution.

Displaying an accurate bead on patent economics, Mr. Hoglund stated in his April brief: "Increasing patent pendency harms inventors because a patent in hand is needed to attract investment capital." PTO director Jon Dudas told the Senate last month, "the current [patent application] backlog is about 490,000 applications -- the highest ever."

Oral arguments for allowing the case to proceed were scheduled for last Friday.

Justice Department attorneys have argued that the suit should be dismissed on the basis that the Constitution's interstate commerce clause enables Congress to regulate interstate commerce. Those selfsame Justice Department attorneys were reportedly seen ingesting large quantities of constitutional psychedelics prior to making the asinine argument. The interstate commerce clause is covered under a different clause (3) in the same section of the constitution. Saliently, the patent clause unambiguously states "promote", not regulate.

The case, which is four years old, had been delayed while the federal judge awaited the outcome of the Supreme Court's decision in Eldred v. Ashcroft, a copyright case in which the Supreme Court affirmed Congress' power to extend copyright terms retroactively, and said it had not overstepped its constitutional authority. Why that justified the delay is not readily apparent, as the thrust of the cases are legally orthogonal. A ruling against Congressional authority at best would have yielded a clue, not directly relevant precedence. Even if, as was ruled, Congress has the power to extend copyright terms retroactively, which would "promote" in conformance with constitutional clause 8 above, it has no bearing on Congressional actions contrary to the Constitution, as argued by the plaintiffs in the fee diversion case.

The American Intellectual Property Law Association filed a friend-of-the-court brief last September, offering a confirming opinion that fee diversion was not promoting the progress of science and the useful arts as the Constitution directs.

Mr. Hoglund has a web page dedicated to the case, and wrote a highly recommended article on the topic of patent office fee diversion.