USPTO Announces Launch of Accelerated Examination For Green Technology Patent Applications

Date: December 10, 2009

On Monday, December 7, 2009, the United States Patent and Trademark Office announced that it was initiating a program to accelerate the examination of pending patent applications for certain green technologies. The USPTO states that accelerating such applications (which is expected to cut pendency, or the time an application languishes at the USPTO, by an average of one year) will allow inventors in the green tech space to secure funding, create new businesses, and bring vital green technologies to the market more quickly than they could by way of the traditional patent application process.

Unfortunately, while the USPTO asserts that its new "Green Technology Pilot Program" will have all these positive effects, there is one big hitch: the program is ONLY open to patent applications that have already been filed (prior to December 8, 2009) and ONLY if the applicant files the appropriate paperwork to get it considered for the program, and ONLY if the application is among the first 3,000 to qualify.

It is difficult to imagine how this program can have any serious impact on jobs, new businesses, and greening our economy, when it is so limited in scope. These restrictions don't give any incentive for new inventors and entrepreneurs to enter the green sector or create green jobs. While those who are fortunate, well-funded, and ready enough to respond to this new program before its launch may benefit, the small companies that are on the verge of developing and seeking patent protection for new, valuable technologies in the green tech sector will be left out in the cold unless and until the USPTO expands the program beyond the favored few with applications that are already pending.

While the USPTO has rules that allow for the accelerated examination of applications in other areas (also applicable to newly filed applications for green technologies), those rules are so onerous that they deter most applicants from taking advantage of the program. For instance, applicants must submit detailed analyses of third party patents and other publications (an "examination support document"), inherently creating admissions by the applicant that could ultimately limit the scope of protection they might obtain for their invention. The new Green Technology Pilot Program bypasses these rules and offers faster examination without requiring the applicant to submit these additional and potentially rights-limiting disclosures.

Even for those lucky enough to have a green technology patent application on file and waiting for examination, there is a very real note of urgency - only the first 3,000 petitions properly filed under this pilot program will receive expedited review, thus requiring that inventors move immediately to secure their position on the patent fast track.

Other requirements: To be eligible for participation in the Green Technology Pilot Program, the invention must pertain to environmental quality, energy conservation, development of renewable energy resources, or greenhouse gas emission reduction. Participation in the program requires that the applicant electronically file a petition before December 8, 2010, specifically stating that the "special" status is sought because either (i) the invention materially enhances the quality of the environment by contributing to the restoration or maintenance of the basic life-sustaining natural elements; (ii) the invention materially contributes to the discovery or development of renewable energy resources (including hydroelectric, solar, wind, renewable biomass, landfill gas, tidal, wave, current, geothermal, and municipal solid waste, as well as the transmission, distribution, or other services directly used in providing electrical energy from these sources); (iii) the invention promotes the more efficient utilization and conservation of energy resources (including the reduction of energy consumption in combustion systems, industrial equipment, and household appliances); or (iv) the invention promotes the reduction of greenhouse gas emissions (including advances in nuclear power generation technology, fossil fuel power generation, or industrial processes with greenhouse gas-abatement technology).

Most people agree that we need programs to spur more economic activity, particularly on the investment front for small companies, and that we would benefit from the wide scale development and deployment of new technologies for clean, alternative energy. A program such as the USPTO's Green Technology Pilot Program could offer a non-contentious, positive step along this path. Likewise, at a time when USPTO revenue is down as a result of decreased patent application filings, the program could also help by generating increased application filings and, thus, fee revenue.

But the program needs to be expanded to those that need it most - the small, innovative companies that are the lifeblood of the American economy. They are struggling to find dollars to fund research and development, and many wonder whether the current, severely backlogged patent examination process warrants the investment in patent protection at all. The current program will benefit a lucky few, and politically rings well (since the announcement was timed to coincide with the start of the United Nations Climate Change Conference in Copenhagen and the EPA's decision to regulate carbon dioxide as a health hazard). But meeting the expressed and universally agreeable goals of generating economic activity while fostering development of valuable new green technologies will require much broader application of this program. One can always hope.