Patent Office to Accelerate Green Technology Patents

Yesterday the United States Patent and Trademark Office announced the creation of a pilot program to accelerate the examination of certain green technology patent applications. The announcement was short on details, which will apparently be forthcoming, but the move to accelerate green technology patents is one that can and should pay off handsomely. Back on March 30, 2009, I wrote an article titled A Proposal for Green Technology, which called on President Obama to issue an Executive Order requiring the accelerated examination of patent applications that relate to green technologies, while cautioning that relying on the current acceleration avenue would be inappropriate given the number and magnitude of unfavorable admissions that would need to be made. While it is unclear as yet under what circumstances green patent applications will be advanced out of order, we can only hope that the onerous and untenable Examination Support Document will not need to be filed in order to accelerate. If an ESD is required that would make this enormously positive initiative nothing more than a publicity stunt because as long as patent applicants must file an ESD few will because the document must include horrific admissions that would almost certainly render any patent unenforceable if litigated.

According to the Patent Office press release, pending 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. The average pendency of an application in green technology areas is currently approximately 30 months to a First Office Action and 40 months to a final decision.

The final decision time of 40 months is misleading, however, because of the way the Patent Office treats the wrapping up of an application. It is extremely common for examiners to issue a Final Rejection and only during this Final Rejection give the patent applicant a real sense relating to what could be obtained. This is because First Office Actions are frequently not very well developed and many patent examiners simply do not spend the amount of time necessary to know the case and prepare a meaningful First Office Action. While this may seem like an indictment against patent examiners, it is not. They have historically been given woefully inadequate amounts of time to do their job properly, so cutting corners at the First Office Action is typical. What this means, however, is in many (if not most) applications either a Continuation or a Request for Continued Examination (RCE) must be filed, which effectively ends the case insofar as the pendency period is considered for USPTO calculations, yet the patent applicant still does not have a final determination, does not have a patent issued and must go back in line and wait more.

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. According to the press release issued by the USPTO, additional details on the pilot program will be available in the Federal Register and via the USPTO’s website, so exactly what a petition to accelerate in a green technology case will need to be remains unclear. Notwithstanding, earlier patenting of these technologies will enable inventors to secure funding, create businesses, and bring vital green technologies into use much sooner. That being the case I have to wonder why this hasn’t been done sooner. We have been debating cap and trade legislation for many months, and just yesterday the Environmental Protection Agency declared carbon dioxide emissions a health hazard. A lot of lip service is paid to innovation and how technology can be the answer, but little action has surfaced until now. This is certainly a step in the right direction, but I have to wonder whether the US government is doing things out of order.

Priming the well with a coherent patent and innovation policy makes a lot of sense. Inventions do not create themselves, and with the Patent Office hopelessly behind something needs to be done. David Kappos, the new Director of the USPTO, has been on the job for just about four months, and progress is being made no doubt. As mentioned earlier, I called for this type of response some time ago, so it would be hypocritical for me to react negatively. Having said that, the truth is today there are fewer patent examiners than there were a year ago, and that number is continuing to decrease. If we accelerate in one area that will mean that other applications slow up. With the interest in green technologies and the good they can provide to the environment and economy this makes sense, but Congress needs to be mindful that the Patent Office cannot do everything at once given its current budget restrictions.

The timing of this announcement relating to a green patent initiative is likely not a coincidence. The initiative announcement comes at the start of the United Nations Climate Change Conference in Copenhagen, Denmark. The Patent Office press release correctly explains that this pilot program will accelerate the development and deployment of green technology, create green jobs, and promote U.S. competitiveness. All of this is 100% true, but 3,000 applications is the tip of the iceberg, and to accelerate out of order these 3,000 patent applications another 3,000 that would have been taken up will slow. Congress must step up to the plate and fix this problem and do it now! Since September 2008, Congress has allocated at least $1.5 trillion to rescue the economy, and that just counts the Bush TARP spending and the Obama Stimulus Plan. On top of that the Federal Reserve has pumped many additional trillions into the economy. All the while the United States Patent Office, with is paltry $2 billion +/- budget has been ignored.

There are many trillions of dollars siting on the sideline waiting for the economic climate to improve. Increasingly I am hearing from individuals that those with money are itching to get back in, looking for the right opportunity to make a move. I have heard this from too many different people, in too many different geographical locations throughout the country and in too many different contexts for there not to be something to this. The patent, technology and innovation game is a high risk, high reward industry, which has a certain level of gambling mentality. A lot of people did the responsible thing and take their money out of the market to wait for improvement. The improvement is coming so slowly that it is driving some money people nuts. If the US were to develop a coherent patent and innovation policy it would drive those money people with a gamblers mentality back into the economy to seek the enormous potential riches. This would create jobs, which in turn would organically grow the economy. You know, a rising tide lifts all boats.

The Patent Office press release concluded by pointing out that if this green patent initiative is successful the USPTO will examine ways to continue and expand the initiative. The Patent Office for too long has been an impediment to economic success, and now we finally seem to have people at the Department of Commerce and within the USPTO who understand it is necessary grant patents in a relevant time frame, and that by doing so will promote economic activity. Unfortunately, the previous Administration at the USPTO did so much harm that now this group of leaders is left with a mess. The only way to fix it in the short term is going to be more funding. With multiple trillions being spend as if our leaders in DC are drunk sailors (no offense to drunk sailors intended) the least they can do is throw a rounding error at the USPTO. Consider the USPTO a penny stock that is guaranteed to soar to Google heights and send them an extra billion or two US dollars.