In 1994 the United States Patent and Trademark Office (USPTO) established a program to review certain applications that were deemed to merit additional scrutiny. This program is called The Sensitive Application Warning System or SAWS for short. See An Ex-Insider’s Perspective on SAWS. Little was known about SAWS publicly, and in the absence of full disclosure the secretive nature of SAWS created much conjecture over the past several months as little by little more information came to light in the public.
Some have charged the agency with subjecting certain patent applications to unending scrutiny in a never ending examination process. See Secret Examination Procedures at the USPTO. The USPTO has been reluctant to say much about SAWS, and in fact as Freedom of Information (FOIA) Requests were filed the Office would not even tell applicants whether their applications were designated for SAWS review. See USPTO Should Release SAWS Numbers.
But today the USPTO has put SAWS to rest, literally. The USPTO has posted a message on the agency’s website explaining that after conducting an internal review of the SAWS program the agency has “decided to retire this program.” Furthermore, the USPTO explained that “[a]ny applications currently in this program will now proceed through prosecution absent any additional SAWS-related processing.”
The USPTO webpage goes on to say that the Office will “seek public input as part of its ongoing Enhanced Patent Quality Initiative on whether there were any quality-enhancing features of the SAWs program that are not already captured through the typical examination and prosecution process.” The USPTO also pledges to be more transparent moving forward, saying that “[a]ny such programs developed as part of the Quality Initiative will be disclosed to the public before implementation.”
Personally, I think the decision to retire the SAWS program shows an abundance of good faith on the part of the USPTO. I doubt that anyone would question that certain applications demand a heightened level of scrutiny, such as those that might claim the ability to travel faster than the speed of light or those that purport to define a perpetual motion machine. But it seemed that over time SAWS expanded its purview, although it is hard to know for sure given the largely secretive nature of the program.
Director nominee Michelle Lee has talked about the importance of patent quality ever since she became Deputy Director, and just weeks ahead of the Patent Quality Summit at the USPTO news that SAWS will be retired has to be welcome news to all applicants. This decision to end SAWS suggests that Lee will take a look at patent quality from a variety of perspectives. All too frequently in the past patent quality has been about denying more applications. This decision to retire SAWS implies that the patent quality initiative will take into consideration rules and procedures that tend to bury innovation unnecessarily. This is important because patent quality needs to be a two-way street if the USPTO wants to truly enhance outcomes.