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Green Technology and Accelerated Patent Examination Programs in the United States and Abroad Amanda Patton

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Green Technology and Accelerated Patent Examination Programs in the United States and Abroad Amanda Patton Intellectual Property Brief Volume 3 | Issue 3 Article 2 8-13-2012 When Patent Offices Become Captain Planet: Green Technology and Accelerated Patent Examination Programs In the United States and Abroad Amanda Patton Follow this and additional works at: http://digitalcommons.wcl.american.edu/ipbrief Part of the Intellectual Property Commons Recommended Citation Patton, Amanda. "When Patent Offices Become Captain Planet: Green Technology and Accelerated Patent Examination Programs In the United States and Abroad." Intellectual Property Brief 3, no. 3 (2012): 30-41. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Intellectual Property Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. When Patent Offices Become Captain Planet: Green Technology and Accelerated Patent Examination Programs In the United States and Abroad Keywords environment, Canadian Intellectual Property Office (CIPO), patent applications, global warming This article is available in Intellectual Property Brief: http://digitalcommons.wcl.american.edu/ipbrief/vol3/iss3/2 When Patent Offices Become Captain Planet: Green Technology and Accelerated Patent Examination Programs In the United States and Abroad by Amanda Patton The catastrophic effects of global climate could be examined before other applications filed at change will likely be the next great challenge that the same time.5 This program was discontinued in humanity will face in the 21st century. Rising global 2012,6 however, similar programs still exist in Canada, temperatures and sea levels, both in the past century Australia, Japan, Korea, and the United Kingdom. and predicted for the next century, are causing the These programs were created in order to shorten world to take notice.1 The scientific consensus is the amount of time needed for an application to be that this global climate change has been caused in examined, allowing patent holders to obtain resolution large part by the release of greenhouses gases into the of their application more quickly and hopefully environment. While many in the U.S. remain skeptical spurring faster innovation. that humans are the cause of global climate change,2 Part I of this paper will discuss the history recent studies have convinced some of the most of out of turn patent examination in the U.S., the cautious that humans must do something to curb the different ways that applications can be expedited, and change in the environment.3 the U.S. Green Technology Patent Expedited Process. Governments both in the U.S. and abroad are Part II will provide an overview of similar programs attempting to curb these changes to the environment in Canada, Australia, Japan, Korea, and the United by limiting the amount of greenhouse gases emitted Kingdom. Part III will discuss the relative merits into the atmosphere and by encouraging their citizens and disadvantages of the programs, and offer a final and industries to create and develop new technologies conclusion on the programs. 4 to help combat the problem. In 2009, the United I. U.S. Expedited Patent Examination States Patent and Trademark Office (USPTO) Procedures announced a limited pilot program in which patent applications “pertaining to environmental quality, A. Expedited Prosecution and the 2006 Accelerated energy conservation, development of renewable energy Examination Program resources or greenhouse gas emission reduction” It seems only fair that that patent applications be examined in the order in which they are received 1. See, e.g., Al Gore, An Inconvenient Truth: The by a patent office. A patent applicant who applies Planetary Emergency of Global Warming and What We Can Do About It (Rodale 2006) (discussing the perils of global for a patent in 2008 would logically expect an answer warming in the companion book to the Oscar-award winning regarding their application before an applicant who movie of the same name). applied in 2010. As patent examination has become 2. See, e.g., Global Warming Lies, http://www. globalwarminglies.com (last visited Feb. 18, 2012); Global more specialized, a first-into-the office, first-out-of- Warming Hoax, http://www.globalwarminghoax.com (last visited the-office rigid order is not always logistically feasible. Fed. 18, 2012). Applications in the U.S. are typically divided into 3. See John Timmer, Climate skeptics perform independent relevant technology groups and then examined based analysis, finally convinced Earth is getting warmer,Ars Technica (Oct. 24, 2011), http://arstechnica.com/science/news/2011/10/ climate-skeptics-perform-independent-analysis-finally-convinced- earth-is-getting-warmer.ars (discussing the Berkley Earth Temperature Project, a project started by several well known climate change skeptics that found evidence of a rise in global temperatures); The Berkley Earth Temperature Project, http:// berkeleyearth.org/ (last visited Feb 18, 2012). 5. USPTO, Pilot Program for Green Technologies Including 4. See Press Release, United States Patent and Trademark Greenhouse Gas Reductions, 74 Fed. Reg. 64,666 (Dec. 8, 2009) Office, USPTO Will Pilot a Program to Accelerate the Examination [hereinafter USPTO Green Pilot Program]. of Certain Green Technology Patent Applications (Dec. 7, 2009), 6. Sunset of the Patent Application Backlog Reduction available at http://www.uspto.gov/news/pr/2009/09_33.jsp Stimulus Plan and a Limited Extension of the Green Technology [hereinafter USPTO Green Pilot Program Initial Press Release]. Pilot Program, 76 Fed. Reg. 77,979, 77,980 (Dec. 15, 2011). 30 Spring 2012 on the oldest effective filling date of the application.7 implemented in 2006 resulted in three different There are, however, many mechanisms to advance means by which an application could be designated applications out of turn.8 as “special” and advanced out of turn.15 The first two The patent rules of 19599 included an programs including the petition to make special due exception to the examination order, stating that patents to the applicant’s age or health and those filed under could be examined out of turn “upon order of the the Patent Prosecution Highway program with Japan, Commissioner to expedite the business of the office” or discussed in Part C of this section, remained relatively if “the inventions are deemed of peculiar importance to intact through the 2006 changes.16 However, all other some branch of the public service and the head of some applications filed after August 26, 2006, which were department of the Government requests immediate previously eligible for designation as “special” to be due action for that reason . .”10 In 1982, the examined out of turn were required to comply with USPTO added a means by which applications could be new accelerated examination procedures.17 accelerated without a fee in response to a request stating Unlike the previous petitions for making the advanced age or ailing health of the applicant, or an application “special,” which did not promote the for any other reason with a fee and justification from same goals as the new program, the new Accelerated the Commissioner.11 Over the years, exceptions to the Examination program contains procedural and fee requirement were also created for inventions that substantive requirements. While many of the materially enhance the quality of the environment, requirements are considered practical and reasonable contribute to the development or conservation (for example, a limit to a single invention and twenty of energy resources, and contribute to countering total claims to be examined), the process also requires terrorism.12 Additional exceptions for advancement an Examination Support Document (ESD)18 seen out of turn included “petitions based on: manufacture, by many practitioners as onerous and impractical.19 infringement, environmental quality, energy, The ESD requires the normal information disclosure recombinant DNA, superconductivity materials, HIV/ statement, but also requires a list for each cited AIDS and cancer, counter terrorism, and biotechnology reference, an explanation as to why the claimed applications filed by small entities.”13 invention is patentable over the reference, as well as In 2006, the USPTO revamped its Accelerated a “concise statement of the utility of the invention as Examination procedures, the goal of which was to defined in each of the independent claims.”20 create a mechanism through which patent applications While some have regarded this program as could be examined within a twelve-month period successful,21 many have rejected the program as largely from the filing date of the application.14 The changes unusable because of the requirements for supplemental documents. The detailed information disclosure 7. See USPTO, Manual of Patent Examining Procedure statements take additional time and expense to prepare, [MPEP] § 708 (2011) (directing patent examiners in each Technology Center to give priority to the application that has “the 15. Id. at 36,323. oldest effective U.S. filing date”); see also 37 C.F.R. § 1.102 (2011) 16. Id. at 36,324. (requiring patent applications to be examined in turn absent certain 17. Id. at 36,323-24. listed exceptions). 18. Id. at 36,324-25. 8. See, e.g., MPEP § 708.02 (2011) (applying 37 C.F.R. § 19. See, e.g., Russ Krajec, Why I Will Not Be Filing Under 1.102 and providing the exceptions for advancing an application the Accelerated Examination Program of the USPTO, Krajec.com, out of turn). http://www.krajec.com/blog/why-i-will-not-be-filing-under-the- 9. 37 C.F.R. § 1.102 (1959); Patents, Trademarks, and accelerated-examination-program-of-the-uspto (last visited Nov. Copyrights, Republication of Regulations, 24 Fed. Reg. 10,332, 7, 2011) (claiming that “no sane practitioner will ever attempt” 10,340 (Dec. 22, 1959) (recording 37 C.F.R. § 1.102 (1959)). accelerated examination, due to the high risk of future claims 10.
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