Extending Patent Application Backlog Reduction Stimulus Plan

The United States Patent and Trademark Office today announced the deadline extension of its Project Exchange through December 31, 2011.  The Federal Register Notice announcing the extension refers to Project Exchange as the “Patent Application Backlog Reduction Stimulus Plan,” which I find rather amusing.  I guess the official name for Project Exchange came into being before we were all so Stimulus Plan weary.

OK, enough. Project Exchange is far too important to applicants who qualify to make fun about it given the unfortunate official name. Under Project Exchange, any applicant with more than one application filed prior to October 1, 2009, that is currently pending at the USPTO, can receive expedited review of one application in exchange for the withdrawal of an unexamined application, thereby speeding up consideration and the time it takes to get a patent issued.

Project Exchange allows applicants having multiple applications currently pending before the USPTO to prioritize which their applications are examined.  The goal of Project Exchange is two-fold. First, to accelerate applications that are likely more meaningful and hopefully will relate to technologies that could result in job creation, and second, through the express abandonment of pending applications participants giving up on an application will necessarily reduce the backlog of unexamined patent applications.

Initially Project Exchange was only open to small entity applications, and was announced to run for a period ending on February 28, 2010. Subsequently, the USPTO extended the plan for an additional four months to June 30, 2010. Subsequently to that extension, the USPTO expanded the plan to eliminate the small entity requirement and further extended its duration to expire at the earlier of the December 31, 2010 date, or the date that 10,000 applications have been accorded special status under this plan. Today the USPTO announces that Project Exchange is being extended until December 31, 2011, or until such time as 10,000 petitions have been granted.

“Project Exchange is an important program in our effort to give applicants more control over when their applications are examined,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos. “By providing incentives for applicants to withdraw unexamined applications that may no longer be important to them, the program has the potential to help reduce the backlog of unexamined patent applications pending before the USPTO. We hope more applicants will take advantage of this opportunity to significantly reduce the examination time for their most important applications with the extended deadline.”

The program will continue on a temporary basis. The USPTO may further extend this plan (on either a temporary or permanent basis), or may discontinue the plan altogether after December 31, 2011, even if 10,000 petitions have not been granted. Program participants are limited to 15 applications, but given the number of petitions received so far that does not seem to be a meaningful limitation.

As of November 15, 2010, a total of 139 petitions have been filed, with 98 having been granted. See Project Exchange Report Summary.  This seems incredibly low and almost unbelievable.  True, there are some industries that are not interested in faster patents, such at the biotechnology industry (in part), the pharmaceutical industry and many Universities.  Having said that, however,

So why are there not more people taking advantage of Project Exchange? I couldn’t tell you really. For many small businesses and independent inventors the problem is they just don’t have any more than one application pending, so they simply cannot take advantage of project exchange. In my own personal situation I would have taken advantage of Project Exchange, but it started just after I received a First Office Action in my own patent application. Still, there should be many other inventors and businesses that could benefit from abandoning an application in exchange for advancing one out of turn, particularly if the second filed application is a Continuation-in-Part or an application that specifically incorporated by reference the previous application that would be abandoned.

Some at the Patent Office seem to be of the belief that one of the reasons that Project Exchange has not been more popular is the fact that people still don’t know about it, which I suppose could be correct.  It is unfortunate, however, to have this program in place, which could help applicants potentially receive patents faster and so few are taking advantage of it.