PTO Proposes Three-Track Patent Examination Process
The U.S. Patent and Trademark Office Thursday unveiled a new initiative aimed at giving patent applicants more control over how quickly their applications will be processed.
The new proposal calls for creating a three-track process from which applicants can choose to decide how quickly they want their applications processed. Track one aims to give applicants "prioritized examination" for a fee, which will be set to pay for the cost of expediting the examination and be high enough to deter inventors from using it for all their patent applications, PTO Director David Kappos said in a conference call. The PTO aims to finalize examinations of applications handled under track one within a year.
Track two is the agency's traditional examination timeline. On average, it took the PTO nearly 35 months in fiscal year 2009 to complete examination of a patent, according to the PTO. Kappos, however, said he expects the process will reduce patent times overall and the agency hopes to lower track two pendency rates to 20 months.
Track three would allow applicants to delay examination for up to 30 months. A delay might give the applicant time to market their product or improve on the technology, Kappos said. He said the fee for this track would be reduced and might be separated out so an applicant could first pay an application fee and then a search fee before deciding whether to move forward with a full examination.
The new initiative will allow the "patent application community to help the PTO to order our workflow so we can be more effective in processing patent applications that are the most important" to the applicants, Kappos said.
When asked if the PTO is concerned that most applicants will choose track one, Kappos said: "I see no risk we'll get overwhelmed with uptake (in track one)...If we calibrate the fees right, we will get an application demographic that is spread out nicely across tracks one, two and three."
Kappos said the PTO would like to offer discounts to micro and small inventors who want to choose track one for their applications but such a move would require congressional approval. House Judiciary Chairman John Conyers, D-Mich., and ranking member Lamar Smith, R-Texas, introduced a bill last month that would give the PTO the authority to set its own patent fees.
While the Obama administration would still like to see Congress pass a broader patent overhaul bill awaiting Senate floor action, Kappos said, referring to the Conyers-Smith bill, that "were very much interested in having the financial support we need in order to address key challenges inside the PTO."
The PTO is holding a public hearing on the three-track patent examination proposal on July 20 and accepting written comments on the initiative until Aug. 20.
A spokeswoman for the Biotechnology Industry Organization said the group "supports additional patent prosecution flexibilities, and we look forward to studying the proposal in detail once all of its elements become known."
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