Figueroa v. United States – the fee diversion case – revealed Judge Newman’s sympathetic
ear for the current patent application backlog, its potential effects on innovation, and the need for increased funding levels. She focused on these issues during oral argument as she pressed the government to show the extreme nature of its position that the preamble of the Patent Clause does not limit congressional authority to establish patent fees:
Judge Newman: “Is the government’s position that…Congress could appropriate the entire income [of the Patent and Trademark Office]…and allow the backlog to continue to increase in the…Office if, in fact, [that's] what Congress decided to do?”
Government counsel: “Yes, your Honor. It’s our position that Congress’ legislation is not limited by the preamble’s promotion language on which the Appellant relies.”
