Modern Times Legal Patent Blog

You May Now Obtain a "Green" Patent Via Accelerated Examination

by Robert J. Sayre

Under a new United States Patent and Trademark Office pilot accelerated examination program, "green" patents can now receive a boost in examination at the United States Patent and Trademark Office. According to the USPTO, green patent applications that are accepted into the program and that are ultimately allowed will be issued by the USPTO about a year faster than without the program. The average pendency in green technology areas is approximately 30 months to a first action and 40 months to a final decision.

"By ensuring that many new products will receive patent protection more quickly, we can encourage our brightest innovators to invest needed resources in developing new technologies and help bring those technologies to market more quickly," explained U.S. Commerce Secretary Gary Locke. Adding to Locke's comments, USPTO Director David Kappos further explained why this program is needed. "Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs."

Only the first 3,000 petitions will be accepted into the pilot program (and, unless extended, the program will expire no later than December 7, 2010). Director Kappos estimates that about 25,000 applications are eligible, so act fast.  Unlike the USPTO's previously existing accelerated examination program, this pilot program for green technologies does not require a dreaded "examination support document" and no separate petition fee is required.

Applications accepted into the accelerated pilot program will be placed on an examiner's accelerated docket (i.e., the examiner's "special docket") prior to issuance of a first Office Action, which should shorten the delay between filing and substantive examination, and the application will have special (accelerated) status on Appeal, if Appeal is needed.

Principal Requirements:

1. Your application must be a US non-reissue, non-provisional utility patent application filed before December 8, 2009, or the national stage of a PCT application that enters the US before that date.
2. Your petition must be filed before the examiner issues a first Office Action.
3. Your petition must be among the first 3,000 filed at the United States Patent and Trademark Office.
4. Your application must include no more than three independent claims, 20 claims total and no claims in multiple-independent format. You can amend your claims via preliminary amendment to meet these requirements.
5. Your application must be directed to a single invention that falls within one of the categories listed below, and your application must be classified in one of the 79 green technology classifications listed on pages 3 and 4 the Federal Register Notice.

Green Categories:

1. Inventions that materially enhance the quality of the environment by contributing to the restoration or maintenance of the basic life-sustaining natural elements; or
2. Inventions that materially contribute to (a) the discovery or development of renewable energy resources [including hydroelectric, solar, wind, renewable biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, and municipal solid waste, as well as the transmission, distribution, or other services directly used in providing electrical energy from these sources]; (b) the more efficient utilization and conservation of energy resources (in combustion systems, industrial equipment, and household appliances); or (c) greenhouse gas emission reduction [including, but not limited to, inventions that contribute to (1) advances in nuclear power generation technology, or (2) fossil fuel power generation or industrial processes with greenhouse gas-abatement technology (e.g., inventions that significantly improve safety and reliability of such technologies)].

Additionally, in your petition, you must pledge that, if the USPTO determines that the claims are directed to multiple inventions (e.g., in a restriction requirement), you will agree to make an election without traverse in a telephonic interview. Your petition must also be filed via the United States Patent and Trademark Office's Electronic Filing System, and the petition to make special must be accompanied by a request for early publication (and payment of the $300 publication fee). Further still, If the application does not clearly disclose that the claimed invention falls within one of the above green categories, the petition must be accompanied by a statement signed by the applicant, assignee, or a patent attorney/agent explaining how the materiality standard is met.

The petition form provided by the United States Patent and Trademark Office is a simple one-page document.

Beyond the advantage of potentially obtaining an issued patent much faster, I see at least a couple other less obvious advantage of taking advantage of this program.  If your application is accepted into this green technology accelerated examination program, it (a) tells the examiner that you are serious about getting your green technology on the market to help save our environment and that you are anxious to obtain your patent, which can help establish a favorable rapport and (b) provides an imprimatur from the USPTO that your invention is a green technology worthy of accelerated attention to serve the nation's key goals in protecting our environment, which may impress judges, juries, investors, licensees, customers, etc.

Robert J. Sayre of Modern Times Legal has a keen interest in sustainability and green technologies and has experience in many of these fields.  Joining the USPTO in promoting green technologies, Modern Times is offering a corollary special deal for green patent applications:  Bob will gladly offer a free consultation for existing and potential new clients alike to help you evaluate whether to file a Petition for Accelerated Examination.  Contact Bob now to find out if your patent application may be eligible.

Above author's photo shows clean air and water in Finse, Norway (2008), accessible via train from Oslo to Bergen.