USPTO To Fast-Track "Green" Patents
From today's USPTO press release:
WASHINGTON - The U.S. Commerce Department’s Patent and Trademark Office (USPTO) will pilot a program to accelerate the examination of certain “green” technology patent applications, Secretary Gary Locke announced today. The new initiative, coming days before the United Nations Climate Change Conference in Copenhagen, Denmark, will accelerate the development and deployment of green technology, create green jobs, and promote U.S. competitiveness in this vital sector.To be eligible for the expedited review, the patents must "materially contribute" to environmental quality, discovering or developing renewable energy resources, improving energy efficiency or reducing greenhouse gas emissions. While it is alwys good to see the USPTO make steps to reduce pendency, one has to question why the USPTO is choosing to engage more in technologically-specific pilot programs that appear more as political patronage than sound patent policy (timing the announcement just prior to the Climate Change Conference in Copenhagen doesn't help either).
[P]ending patent applications in green technologies will be eligible to be accorded special status and given expedited examination, which will have the effect of reducing the time it takes to patent these technologies by an average of one year. Earlier patenting of these technologies enables inventors to secure funding, create businesses, and bring vital green technologies into use much sooner.
Patent applications are normally taken up for examination in the order that they are filed. The average pendency time for applications in green technology areas is approximately 30 months to a first office action and 40 months to a final decision. Under the pilot program, for the first 3,000 applications related to green technologies in which a proper petition is filed, the agency will examine the applications on an accelerated basis.
Clearly, "green" technologies are important (depending how you define it), but should the PTO be in the business of pitting technologies against one another as part of its examination policy? The examination process at the USPTO is, more or less, a zero sum game right now - if you reduce the pendency for certain applications, you will likely increase the pendency for others (the PTO will not hire additional employees for the pilot program). And, unlike business-method and software patent applications, green technology was never identified as experiencing any unusual pendency problems. Why the sudden urgency?
Director Kappos states: "“Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs . . . Applications in this pilot program will see a significant savings in pendency, which will help bring green innovations to market more quickly.” Aside from being cliché, this statement is somewhat insulting: what technological sector doesn't view their patents as "important" and vital to job creation?
See NYT, "Obama Admin Will Speed Reviews of 'Green' Patents" (link)
Posts
The USPTO already favors patent areas in a way that could be seen as 'political patronage'; for instance, patents on items that counter terrorism are granted special treatment.
Having read the Notice in the Official Gazette about the new pilot program, I note that it is only available for patents filed before December 8, 2009 and that have not yet been taken up for Examination. I also note that granting of the petition will only affect that particular case and not Continuing applications. The Notice say that separate petitions must be filed in the Continuing applications.
My question is whether the separate petitions filed in Continuing applications can only be filed in those Continuing applications if the Continuing applications were actually filed before December 8, 2009. In other words, does the requirement that the application be filed prior to December 8, 2009 reference the actual US filing date or the effective US filing date?
Also, the Notice makes it clear that the Application will only be advanced out of turn for the first Examination, and then placed in the amended queue, and not in the special queue, so it will not be given special treatment for publication and for appeals. But what about RCEs? RCEs are now placed in the queue with new applications and years can pass before they are taken up for examination. Are these applications once more in a position to be taken up for a first office action? In other words, can a petition be filed to advance them out of the queue? If so, must a new petition be filed each time an RCE is filed, or does a prior grant of a petition carry over to the RCE?
There's little question that "green" technology is increasingly critical to preservation of the environment. However, the USPTO's decision definitely appears to be politically motivated. But it's certainly nothing new for politics and patent law to be intertwined. Still, one hopes that Kappos et al. have paid heed not only to the political points scored for this decision, but have also thoroughly considered other potential consequences (both positive and negative) of this preferential treatment. It will be interesting to see how it all unfolds.
Any news on how it is going with the green patents?
Post a Comment