On June 4, 2010, the United States Patent and Trademark Office (“PTO”) requested comment on implementation of its new, multi-track patent examination method. Currently, patent seekers have only one mechanism to apply for a patent; however, the PTO is considering giving consumers three different track choices. The first track will allow applicants to have their patent granted in less than a year in exchange for a heavily increased application fee. The fee will be high enough to provide for an increased number of staff members to handle the expedited process. The second track will be similar to the current system. The third track will allow applicants to extend the patenting process for up to 30 months.
Since publication of the PTO’s request for comment, the internet has been atwitter with patent attorneys’ opinions addressing the pros and cons of the proposed changes. This quick response by the community is due in part to the overwhelming need for the elimination of the massive patent application backlog. Currently, about three-quarters of a million patent applications are in a sort of waiting line and considered “backlogged.”
Even prior to the PTO’s announcement, some patent attorneys had already considered a multi-track or multi-tiered approach to examination. University of Richmond law professor Kristen Osenga, for example, recently published an article addressing the issues she has with the PTO’s proposed method of multi-track examination.
Osenga’s article first gives a quick and dirty breakdown of her prior, more detailed article, which proposes a three track approach to patenting that differs from the PTO’s proposed method. The new article is critical of the PTO’s current proposal. Osenga admits that the multi-tiered structure is the way to go, but she doesn’t believe the PTO’s reasoning behind patent-seeker’s motivation is correct or helpful. Osenga writes that the PTO desires to eliminate some of the patent backlog via the deferred third track by giving patent-seekers time to lose interest in completing the application process. Osenga writes that large companies that collect patent “portfolio fiber” are motivated solely by the end result of having the patent and the prestige that the patent brings with it, and therefore those patent seekers will not “drop out” of the application process. Some potential patent holders may be motivated in this way, but the future threat of patent enforcement should not be entirely left out in any analysis. While the “patent pending” status doesn’t provide full protection, “it would be unwise for a company to pursue the manufacture of an invention, knowing it could be liable for patent infringement awards or damages once the patent is issued.” A tried and true statistic supports the idea that patent litigation isn’t a driving factor in the process: the vast majority of patents will never be litigated (only about 1% are litigated).
Other writers have analyzed the PTO’s proposal as well. Dennis Crouch of PatentlyO.com has written that the third track could address a segment of the patent seeking population that significantly contributes to the PTO patent backlog. He points to non-urgent inventions that have a patent filed before a market develops for the product, as a good example of backlog flotsam. These non-urgent inventions seemingly benefit from a backlog by stringing out the process. A multi-track system would allow these foot-dragging applicants the time they crave while at the same time allowing urgent patent seekers to skip the line out of the backlog.
Those who skip in line will be met with an increased fee, which will be needed by the PTO to maintain the fast track. PTO’s desire to hire 1,000 additional patent examiners shows it acknowledges the difficulty in backlog elimination. I believe that the PTO is headed in the right direction with bringing new examiners on board, and it is taking a step toward elimination of the unwanted parts of the patent backlog.