Green Means Go! Accelerated Examination of “Green” Patent Applications at the U.S. Patent Office

In a pilot program recently announced by the U.S. Patent and Trademark Office (“USPTO”), many environmentally-friendly patent applications may obtain special status and be examined out-of-turn without the most burdensome aspects of previous programs.  Benefits for qualifying applications include reduced documentation and burdensome pre-examination analysis by the Applicant and quicker review by Examiners.  It is estimated that this program could shave as much as a year or more off the pendency of a so-called “green” patent application.

Anyone who has attempted to navigate the bureaucratic world of the U.S. Patent and Trademark Office knows that it is a world of wait, wait, and then wait some more.  A typical patent application filed at the U.S. Patent Office may pend for thirty months or more before obtaining a first examination.

There are ways to accelerate the examination of an application, but the requirements are unduly burdensome.  Before August 25, 2006, an Applicant could request acceleration of an application for a whole host of specially defined reasons, including infringement, Applicant’s health or age, for environmentally-friendly or energy conservation applications and for countering terrorism, to name a few.  Since August 25, 2006, the scope of applications allowed to obtain special status has expanded – any utility application may petition for special status.  While this may sound like a positive step, the catch is that the burden placed on Applicants is so large, Applicants rarely take advantage of accelerated examination.

Specifically, a petition to make special (except due to a person’s age or health) requires that the Applicant conduct an extensive search including foreign patents and non-patent literature (a search is not currently required by the U.S. Patent Office for “normal” applications) and submit an “examination support document” requiring an identification of ALL limitations in the claims of the application that are disclosed by the references deemed “most closely related.”  But this is not the end of it –  the Applicant must also submit a “detailed examination of how each of the claims are patentable over the references cited.”  In essence, Applicants are required to do the work of the Examiners.  It is easy to see why not many participate in this accelerated examination program.

However, on December 8, 2009, the U.S. Patent Office announced it would accelerate the examinations of applications pertaining to certain green technologies, such as applications pertaining to environmental quality, energy conservation, development of renewable resources or greenhouse gas emissions reduction.  This new program makes it much, much less burdensome for those wanting accelerated examination of their green inventions.

The good news with the “green pilot program” is that no search is required, nor is an examination support document necessary.  Therefore, the most burdensome requirements of the accelerated examination program have been removed for green inventions.  In addition, (as with previous acceleration programs) the petition fee of $130 for accelerated examination is waived for green inventions.

Once again, there is a catch, but the burden placed on Applicants is not nearly as heavy as before.  The catch is that the USPTO will accept “only the first 3,000 petitions” filed before December 8, 2010, unless the program is extended.  In addition, an Applicant must satisfy some other simple requirements, and the subject matter of the application must fall within one of the “green” classifications specified.

But this pilot program for the acceleration of green patent applications should prove to be very enticing to Applicants interested in obtaining quicker examination of green inventions at the USPTO.  And hopefully, the USPTO sees the value and extends it so that many more Applicants with green inventions may take advantage of this program.


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