[Federal Register Volume 72, Number 162 (Wednesday, August 22, 2007)]
[Rules and Regulations]
[Pages 46899-46903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16574]


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DEPARTMENT OF COMMERCE

Patent and Trademark Office

37 CFR Parts 1 and 41

[Docket No. PTO-C-2006-0015]
RIN 0651-AB81


Revision of Patent Fees for Fiscal Year 2007

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Final rule.

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SUMMARY: The United States Patent and Trademark Office (USPTO) 
(referred to as ``Office'' in this notice) is adjusting certain patent 
fee amounts to reflect fluctuations in the Consumer Price Index (CPI). 
Also, the Office is adjusting, by a corresponding amount, a few patent 
fee rates that track the affected fee amounts. The Director is 
authorized to adjust these fee amounts annually by the CPI to recover 
the higher costs associated with doing business.
    The USPTO is adjusting the patent fee amounts under the 
Consolidated Appropriations Act, 2005 (Consolidated Appropriations 
Act), which revised certain patent fee rates, and provided for a search 
fee and examination fee separate from the filing fee, during fiscal 
years 2005 and 2006; and continued in fiscal year 2007 under the 
revised Continuing Appropriations Resolution, 2007 (Continuing 
Appropriations Resolution). Legislation has been introduced that would 
extend the fee rate revisions in the Consolidated Appropriations Act.
    In the event legislation is not enacted to continue the patent fee 
amounts under the Consolidated Appropriations Act, the USPTO will be 
adjusting patent statutory fee rates that were in application prior to 
implementation of the Consolidated Appropriations Act. The prior fee 
rates, adjusted for CPI, will be effective for fiscal year 2008.

DATES: Effective September 30, 2007.

FOR FURTHER INFORMATION CONTACT: Dianne Woods by e-mail at 
[email protected], by telephone at (571) 272-6301, or by fax at 
(571) 273-0127.

SUPPLEMENTARY INFORMATION: This final rule adjusts certain USPTO patent 
fee amounts in accordance with the applicable provisions of title 35, 
United States Code, as amended by the Consolidated Appropriations Act 
(Pub. L. 108-447). This final rule also adjusts, by a corresponding 
amount, a few patent fee rates (37 CFR 1.17(e), (r) and (s) that track 
statutory fee amounts (37 CFR 1.16(a)).
    The USPTO is adjusting the patent fee amounts established under the 
Consolidated Appropriations Act, and extended under the revised 
Continuing Appropriations Resolution. Legislation has been introduced 
in the Congress that would extend the fee amount revisions in the 
Consolidated Appropriations Act, and the revised Continuing 
Appropriations Resolution. If the legislation is enacted, then this 
final rule will apply. If this legislation is not enacted, then the fee 
rate adjustments will apply to the former fee amounts in place on 
October 1, 2004, to December 7, 2004 (prior to the enactment of the 
Consolidated Appropriations Act).
    A proposed rule notice was published at 71 FR 32285 on June 5, 
2006, which

[[Page 46900]]

requested comments by July 5, 2006. No comments were received. An 
incorrect reference to National stage fees was corrected. The USPTO 
delayed implementation of the CPI fee rates adjustment from October 1, 
2006, to September 30, 2007. During this time, the Administration's 
projected CPI-U for the twelve-month period prior to enactment of the 
fee rates adjustment decreased from 3.5 percent to 2.8 percent. Based 
on the revised projected CPI-U, patent statutory fee amounts will be 
adjusted by 2.8 percent in this final rule.
    Customers may wish to refer to the USPTO's official Web site at 
http://www.uspto.gov for the most current fee amounts.

Background

Statutory Provisions

    Patent fee amounts are authorized by 35 U.S.C. 41, 119, 120, 132(b) 
and 376. For fees paid under 35 U.S.C. 41(a) and (b) and 132(b), 
independent inventors, small business concerns, and nonprofit 
organizations who meet the requirements of 35 U.S.C. 41(h)(1) are 
entitled to a fifty-percent reduction.
    Section 41(f) of title 35, United States Code, provides that fee 
amounts established under 35 U.S.C. 41(a) and (b) may be adjusted on 
October 1, 1992, and every year thereafter, to reflect fluctuations in 
the CPI over the previous twelve months.
    Section 41(d) of title 35, United States Code, authorizes the 
Director to establish fee amounts for all other processing, services, 
or materials related to patents to recover the average cost of 
providing these services or materials, except for the fees for 
recording a document affecting title, for each photocopy, for each 
black and white copy of a patent, and for standard library service.
    Section 41(g) of title 35, United States Code, provides that new 
fee amounts established by the Director under section 41 may take 
effect thirty days after notice in the Federal Register and the 
Official Gazette of the United States Patent and Trademark Office.

Fee Adjustment Level

    The patent statutory fee amounts established by 35 U.S.C. 41(a) and 
(b) will be adjusted on September 30, 2007, to reflect fluctuations 
occurring during the twelve-month period from October 1, 2006, through 
September 30, 2007, in the Consumer Price Index for All Urban Consumers 
(CPI-U). The Office of Management and Budget has advised that in 
calculating these fluctuations, the USPTO should use CPI-U data as 
determined by the Secretary of Labor. In accordance with previous fee-
setting methodology, the Office bases this fee rate adjustment on the 
Administration's projected CPI-U for the twelve-month period ending 
September 30, 2007, which is 2.8 percent. Based on this projected CPI-
U, patent statutory fee amounts will be adjusted by 2.8 percent.
    Certain patent processing fee rates established under 35 U.S.C. 
41(d), 119, 120, 132(b), 376, and Public Law 103-465 (the Uruguay Round 
Agreements Act) will be adjusted to reflect fluctuations in the CPI.
    The fee amounts were rounded by applying standard arithmetic rules 
so that the amounts rounded will be convenient to the user. Fee rates 
for other than a small entity of $100 or more were rounded to the 
nearest $10. Fee rates of less than $100 were rounded to an even number 
so that any comparable small entity fee amount will be a whole number.

Discussion of Specific Rules

    Legislation has been introduced in the Congress that would extend 
the fee revisions in the Consolidated Appropriations Act, and the 
revised Continuing Appropriations Resolution. If the legislation is 
enacted, then this final rule will apply. To ensure clarity in the 
implementation of the proposed new fee amounts, a discussion of 
specific revisions is set forth below.

37 CFR 1.16 National Application Filing, Search, and Examination Fees

    Section 1.16, paragraphs (a) through (e), and (h) through (s), are 
revised to adjust fee rates established therein to reflect fluctuations 
in the CPI.

37 CFR 1.17 Patent Application and Reexamination Processing Fees

    Section 1.17, paragraphs (a)(2) through (a)(5), (e), (l), (m), and 
(r) through (t), are revised to adjust fee rates established therein to 
reflect fluctuations in the CPI.

37 CFR 1.18 Patent Post Allowance (Including Issue) Fees

    Section 1.18, paragraphs (a) through (c), are revised to adjust fee 
rates established therein to reflect fluctuations in the CPI.

37 CFR 1.20 Post Issuance Fees

    Section 1.20, paragraphs (c)(3), (c)(4), and (e) through (g), are 
revised to adjust fees established therein to reflect fluctuations in 
the CPI.

37 CFR 1.492 National Stage Fees

    Section 1.492, paragraphs (a), (b)(2) through (b)(4), (c)(2), (d) 
through (f), and (j), are revised to adjust fees established therein to 
reflect fluctuations in the CPI.

37 CFR 41.20 Fees

    Section 41.20, paragraphs (b)(1) through (b)(3), are revised to 
adjust fees established therein to reflect fluctuations in the CPI.

Other Considerations

    Paperwork Reduction Act: This final rule involves information 
collection requirements that are subject to review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq. The collections of information involved in this 
final rule have been reviewed and previously approved by the OMB under 
the following control numbers: 0651-0016, 0651-0021, 0651-0031, 0651-
0032, and 0651-0033. The USPTO is not resubmitting information 
collection requests to the OMB for its review and approval because the 
changes in this final rule do not affect the information collection 
requirements associated with the information collections under these 
OMB control numbers.
    Notwithstanding any other provisions of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This final rule does not contain 
policies with Federalism implications sufficient to warrant preparation 
of a Federalism Assessment under Executive Order 13132 (August 4, 
1999).
    Regulatory Flexibility Act: For the reasons set forth herein, The 
Deputy General Counsel for General Law of the USPTO has certified to 
the Chief Counsel for Advocacy, Small Business Administration, that the 
final rule change will not have a significant economic impact on a 
substantial number of small entities (Regulatory Flexibility Act, 5 
U.S.C. 605(b)).
    By statute, the USPTO's Director is expressly authorized to adjust 
fee amounts annually to reflect fluctuations in the CPI. See 35 U.S.C. 
41(f) (certain fees ``may be adjusted by the Director on October 1, 
1992, and every year thereafter, to reflect any fluctuations occurring 
during the previous 12 months in the Consumer Price Index as determined 
by the Secretary of Labor''). This final rule increases fee amounts to 
reflect the change in the CPI as

[[Page 46901]]

authorized by 35 U.S.C. 41(f). Legislation has been introduced in the 
Congress that would extend the fee amount revisions in the Consolidated 
Appropriations Act and the revised Continuing Appropriations 
Resolution. If the legislation is enacted, then this final rule will 
apply.
    The fee amount increases will range from a minimum of $0 to a 
maximum of $110 under the final rule.
    Under 35 U.S.C. 41(h)(1) small entities are accorded a fifty-
percent reduction in most patent fee amounts. Consequently, the small 
entity fee increases will range from a minimum of $0 to a maximum of 
$55 under the final rule. The sole exception under this final rule is 
the fee set forth under 37 CFR 1.17(t), which does not qualify for a 
small entity fee reduction. The fee rate increase for 37 CFR 1.17(t) is 
$40.
    Accordingly, the final rule does not have a significant economic 
impact on a substantial number of small entities.

Lists of Subjects

37 CFR Part 1

    Administrative practice and procedure, Biologics, Courts, Freedom 
of information, Inventions and patents, Reporting and recordkeeping 
requirements, Small businesses.

37 CFR Part 41

    Administrative practice and procedure, Inventions and patents, 
Lawyers.

0
For the reasons set forth in the preamble, the USPTO is proposing to 
amend title 37 of the Code of Federal Regulations, parts 1 and 41, as 
set forth below.

PART 1--RULES OF PRACTICE IN PATENT CASES

0
1. The authority citation for 37 CFR part 1 would continue to read as 
follows:

    Authority: 35 U.S.C. 2(b)(2), unless otherwise noted.


0
2. Section 1.16 is amended by revising paragraphs (a) through (e), and 
(h) through (s) to read as follows:


Sec.  1.16  National application filing, search and examination fees.

    (a) Basic fee for filing each application under 35 U.S.C. 111 for 
an original patent, except design, plant, or provisional applications:
    (1) For an application filed on or after December 8, 2004:

By a small entity (Sec.   1.27(a)) if the application is          $75.00
 submitted in compliance with the Office electronic filing
 system (Sec.   1.27(b)(2))..................................
By a small entity (Sec.   1.27(a))...........................    $155.00
By other than a small entity.................................    $310.00
 

    (2) For an application filed before December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $405.00
By other than a small entity.................................    $810.00
 

    (b) Basic fee for filing each application for an original design 
patent:
    (1) For an application filed on or after December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (2) For an application filed before December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $180.00
By other than a small entity.................................    $360.00
 

    (c) Basic fee for filing each application for an original plant 
patent:
    (1) For an application filed on or after December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (2) For an application filed before December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $285.00
By other than a small entity.................................    $570.00
 

    (d) Basic fee for filing each provisional application:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (e) Basic fee for filing each application for the reissue of a 
patent:
    (1) For an application filed on or after December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $155.00
By other than a small entity.................................    $310.00
 

    (2) For an application filed before December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $405.00
By other than a small entity.................................    $810.00
 

* * * * *
    (h) In addition to the basic filing fee in an application, other 
than a provisional application, for filing or later presentation at any 
other time of each claim in independent form in excess of 3:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (i) In addition to the basic filing fee in an application, other 
than a provisional application, for filing or later presentation at any 
other time of each claim (whether dependent or independent) in excess 
of 20 (note that Sec.  1.75(c) indicates how multiple dependent claims 
are considered for fee calculation purposes):

By a small entity (Sec.   1.27(a))...........................     $25.00
By other than a small entity.................................     $50.00
 

    (j) In addition to the basic filing fee in an application, other 
than a provisional application, that contains, or is amended to 
contain, a multiple dependent claim, per application:

By a small entity (Sec.   1.27(a))...........................    $185.00
By other than a small entity.................................    $370.00
 

    (k) Search fee for each application filed under 35 U.S.C. 111 on or 
after December 8, 2004, for an original patent, except design, plant, 
or provisional applications:

By a small entity (Sec.   1.27(a))...........................    $255.00
By other than a small entity.................................    $510.00
 

    (l) Search fee for each application filed on or after December 8, 
2004, for an original design patent:

By a small entity (Sec.   1.27(a))...........................     $50.00
By other than a small entity.................................    $100.00
 

    (m) Search fee for each application filed on or after December 8, 
2004, for an original plant patent:

By a small entity (Sec.   1.27(a))...........................    $155.00
By other than a small entity.................................    $310.00
 

    (n) Search fee for each application filed on or after December 8, 
2004, for the reissue of a patent:

By a small entity (Sec.   1.27(a))...........................    $255.00
By other than a small entity.................................    $510.00
 

    (o) Examination fee for each application filed under 35 U.S.C. 111 
on or after December 8, 2004, for an original patent, except design, 
plant, or provisional applications:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (p) Examination fee for each application filed on or after December 
8, 2004, for an original design patent:

By a small entity (Sec.   1.27(a))...........................     $65.00
By other than a small entity.................................    $130.00
 

    (q) Examination fee for each application filed on or after December 
8, 2004, for an original plant patent:

By a small entity (Sec.   1.27(a))...........................     $80.00
By other than a small entity.................................    $160.00
 

    (r) Examination fee for each application filed on or after December 
8, 2004, for the reissue of a patent:

By a small entity (Sec.   1.27(a))...........................    $310.00
By other than a small entity.................................    $620.00
 

    (s) Application size fee for any application under 35 U.S.C. 111 
filed on or after December 8, 2004, the specification and drawings of 
which exceed 100 sheets of paper, for each additional 50 sheets or 
fraction thereof (see Sec.  1.52(f) for applications submitted in whole 
or in part on an electronic medium):

By a small entity (Sec.   1.27(a))...........................    $130.00
By other than a small entity.................................    $260.00
 


0
3. Section 1.17 is amended by revising paragraphs (a)(2) through 
(a)(5), (e), (l), (m), and (r) through (t) to read as follows:

[[Page 46902]]

Sec.  1.17  Patent application and reexamination processing fees.

    (a) * * *
    (2) For reply within second month:

By a small entity (Sec.   1.27(a))...........................    $230.00
By other than a small entity.................................    $460.00
 

    (3) For reply within third month:

By a small entity (Sec.   1.27(a))...........................    $525.00
By other than a small entity.................................  $1,050.00
 

    (4) For reply within fourth month:

By a small entity (Sec.   1.27(a))...........................    $815.00
By other than a small entity.................................  $1,630.00
 

    (5) For reply within fifth month:

By a small entity (Sec.   1.27(a))...........................  $1,110.00
By other than a small entity.................................  $2,220.00
 

* * * * *
    (e) To request continued examination pursuant to Sec.  1.114:

By a small entity (Sec.   1.27(a))...........................    $405.00
By other than a small entity.................................    $810.00
 

* * * * *
    (l) For filing a petition for the revival of an unavoidably 
abandoned application under 35 U.S.C. 111, 133, 364, or 371, for the 
unavoidably delayed payment of the issue fee under 35 U.S.C. 151, or 
for the revival of an unavoidably terminated reexamination proceeding 
under 35 U.S.C. 133 (Sec.  1.137(a)):

By a small entity (Sec.   1.27(a))...........................    $255.00
By other than a small entity.................................    $510.00
 

    (m) For filing a petition for the revival of an unintentionally 
abandoned application, for the unintentionally delayed payment of the 
fee for issuing a patent, or for the revival of an unintentionally 
terminated reexamination proceeding under 35 U.S.C. 41(a)(7) (Sec.  
1.137(b)):

By a small entity (Sec.   1.27(a))...........................    $770.00
By other than a small entity.................................  $1,540.00
 

* * * * *
    (r) For entry of a submission after final rejection under Sec.  
1.129(a):

By a small entity (Sec.   1.27(a))...........................    $405.00
By other than a small entity.................................    $810.00
 

    (s) For each additional invention requested to be examined under 
Sec.  1.129(b):

By a small entity (Sec.   1.27(a))...........................    $405.00
By other than a small entity.................................    $810.00
 

    (t) For the acceptance of an unintentionally delayed claim for 
priority under 35 U.S.C. 119, 120, 121, or 365(a) or (c):

(Sec.  Sec.   1.55 and 1.78).................................   $1,410.0
 


0
4. Section 1.18 is amended by revising paragraphs (a) through (c) to 
read as follows:


Sec.  1.18  Patent post allowance (including issue) fees.

    (a) Issue fee for issuing each original patent, except a design or 
plant patent, or for issuing each reissue patent:

By a small entity (Sec.   1.27(a))...........................    $720.00
By other than a small entity.................................  $1,440.00
 

    (b) Issue fee for issuing an original design patent:

By a small entity (Sec.   1.27(a))...........................    $410.00
By other than a small entity.................................    $820.00
 

    (c) Issue fee for issuing an original plant patent:

By a small entity (Sec.   1.27(a))...........................    $565.00
By other than a small entity.................................  $1,130.00
 

* * * * *

0
5. Section 1.20 is amended by revising paragraphs (c)(3), (c)(4), and 
(e) through (g) to read as follows:


Sec.  1.20  Post issuance fees.

* * * * *
    (c) * * *
    (3) For filing with a request for reexamination or later 
presentation at any other time of each claim in independent form in 
excess of 3 and also in excess of the number of claims in independent 
form in the patent under reexamination:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (4) For filing with a request for reexamination or later 
presentation at any other time of each claim (whether dependent or 
independent) in excess of 20 and also in excess of the number of claims 
in the patent under reexamination (note that Sec.  1.75(c) indicates 
how multiple dependent claims are considered for fee calculation 
purposes):

By a small entity (Sec.   1.27(a))...........................     $25.00
By other than a small entity.................................     $50.00
 

* * * * *
    (e) For maintaining an original or reissue patent, except a design 
or plant patent, based on an application filed on or after December 12, 
1980, in force beyond four years, the fee being due by three years and 
six months after the original grant:

By a small entity (Sec.   1.27(a))...........................    $465.00
By other than a small entity.................................    $930.00
 

    (f) For maintaining an original or reissue patent, except a design 
or plant patent, based on an application filed on or after December 12, 
1980, in force beyond eight years, the fee being due by seven years and 
six months after the original grant:

By a small entity (Sec.   1.27(a))...........................  $1,180.00
By other than a small entity.................................  $2,360.00
 

    (g) For maintaining an original or reissue patent, except a design 
or plant patent, based on an application filed on or after December 12, 
1980, in force beyond twelve years, the fee being due by eleven years 
and six months after the original grant:

By a small entity (Sec.   1.27(a))...........................  $1,955.00
By other than a small entity.................................  $3,910.00
 

* * * * *

0
6. Section 1.492 is amended by revising paragraphs (a), (b)(2) through 
(b)(4), (c)(2), (d) through (f), and (j) to read as follows:


Sec.  1.492  National stage fees.

* * * * *
    (a) The basic national fee for an international application 
entering the national stage under 35 U.S.C. 371 if the basic national 
fee was not paid before December 8, 2004:

By a small entity (Sec.   1.27(a))...........................    $155.00
By other than a small entity.................................    $310.00
 

    (b) * * *
    (2) Where a search report on the international application has been 
prepared by the USPTO:

By a small entity (Sec.   1.27(a))...........................     $50.00
By other than a small entity.................................    $100.00
 

    (3) Where a search report on the international application has been 
prepared and provided to the USPTO:

By a small entity (Sec.   1.27(a))...........................    $205.00
By other than a small entity.................................    $410.00
 

    (4) In all situations not provided for in paragraph (b)(1) through 
(3) of this section:

By a small entity (Sec.   1.27(a))...........................    $255.00
By other than a small entity.................................    $510.00
 

    (c) * * *
    (2) In all situations not provided for in paragraph (c)(1) of this 
section:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (d) In addition to the basic national fee, for filing or on a later 
presentation at any other time of each claim in independent form in 
excess of 3:

By a small entity (Sec.   1.27(a))...........................    $105.00
By other than a small entity.................................    $210.00
 

    (e) In addition to the basic national fee, for filing or on later 
presentation at any other time of each claim (whether dependent or 
independent) in excess of 20 (note that Sec.  1.75(c) indicates how 
multiple dependent claims are considered for fee calculation purposes):

By a small entity (Sec.   1.27(a))...........................     $25.00
By other than a small entity.................................     $50.00
 

    (f) In addition to the basic national fee, if the application 
contains, or is amended to contain, a multiple dependent claim, per 
application:

By a small entity (Sec.   1.27(a))...........................    $185.00
By other than a small entity.................................    $370.00
 

* * * * *
    (j) Application size fee for any international application for 
which the basic national fee was not paid before December 8, 2004, the 
specification and drawings of which exceed 100 sheets of paper, for 
each additional 50 sheets or

[[Page 46903]]

fraction thereof (see Sec.  1.52(f) for applications submitted in whole 
or in part on an electronic medium):

By a small entity (Sec.   1.27(a))...........................    $130.00
By other than a small entity.................................    $260.00
 

PART 41--PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND 
INTERFERENCES

0
1. The authority citation for 37 CFR part 41 would continue to read as 
follows:

    Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 
135, unless otherwise noted.


0
2. Section 41.20 is amended by revising paragraphs (b)(1) through 
(b)(3) to read as follows:


Sec.  41.20  Fees.

* * * * *
    (b) * * *
    (1) For filing a notice of appeal from the examiner to the Board:

By a small entity (Sec.   1.27(a) of this title).............    $255.00
By other than a small entity.................................    $510.00
 

    (2) In addition to the fee for filing a notice of appeal, for 
filing a brief in support of an appeal:

By a small entity (Sec.   1.27(a) of this title).............    $255.00
By other than a small entity.................................    $510.00
 

    (3) For filing a request for an oral hearing before the Board in an 
appeal under 35 U.S.C. 134:

By a small entity (Sec.   1.27(a) of this title).............    $515.00
By other than a small entity.................................  $1,030.00
 


    Dated: August 1, 2007.
Jon W. Dudas,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
 [FR Doc. E7-16574 Filed 8-21-07; 8:45 am]
BILLING CODE 3510-16-P