USPTO Moves Closer To Implementing Proposed “Three Track” Program For Patent Applicants

In a recent press release, the United States Patent & Trademark Office (“USPTO”) announced plans to move forward with its proposed “Three Track” patent application processing program. The program, first published for public comment in June 2010, will enable applicants to choose the speed with which their patent application winds its way through the patent examination process.

The USPTO also published a detailed notice of proposed rulemaking on “Track One” of the program, which will give applicants the opportunity for prioritized examination and a final disposition of a patent application within 12 months of its filing date. The proposed filing fee for this “Track One” is currently $4,000, but the USPTO contemplates raising that to $4,800 if discounted fees for small entities are implemented. To meet the 12-month goal, the USPTO will limit the number of applications in the program to 10,000 in the first year.

These efforts are part of the USPTO’s broader plan to reduce pendency and clear the substantial backlog of currently-pending applications. Late in 2010, the USPTO introduced data visualization tools, known as its “patents dashboard” showing various patent pendency statistics. The patent dashboard currently shows an average patent pendency of 34.5 months, with an average time from filing an application to a first office action of 24.2 months and a total application backlog of 718,857. The agency has stated a strategic goal of providing first office actions on all new applications in an average of 10 months from their date of filing by 2014.

This is not the first time the USPTO has tried to get patent applicants to fast-track applications outside the normal method of petitioning to make applications special, and it is confusing that the USPTO will now offer at least three different ways to speed up the examination process. The USPTO also offers an accelerated patent examination program for patent applicants willing to do their own comprehensive prior art search and make detailed statements comparing their invention to results of that search. Under Track One of the new program, patent applicants willing to pay the high filing fee can expect to be accorded priority over regularly-filed patent applications for the life of the application’s pendency. Patent applicants participating in this program will also have to accept limits on the number of claims and filing through the USPTO’s electronic filing system, all of which are also requirements under the accelerated examination program.

The move is part of the Obama administration’s new “Startup America” initiative to encourage innovation as well as startup and entrepreneurial activity. Concerns exist, however, whether initiatives like these will only raise costs without cutting overall pendency at the USPTO, especially with major budgetary issues.  Also, the number of applicants that actually take advantage of the new Track One remains to be seen – as does whether those that do will only be large companies will the financial resources to pay the high filing fees. The possibility therefore exists for deep-pocketed entities to tilt the patent system even further against independent inventors, small businesses, and other patent applicants with limited financial resources, despite the Obama administration’s objectives, and increasing costs for entrepreneurs and startups instead of making it easier for them to participate in the patenting process.  Yet another major concern with the new Track One is whether pendency for other, non-prioritized patent applications will actually increase as resources are devoted to applicants seeking a final disposition within the 12-month period.