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Archived updates for Wednesday, December 16, 2009

USPTO Rules on Special Status Petitions for Green Technology Patent Applications

In a Federal Register notice published and effective on December 8, 2009, the U.S. Patent and Trademark Office announced rules for implementing its previously-announced pilot program in which an applicant may petition to have an application involving green technologies advanced out of turn without meeting all of the requirements of the existing accelerated examination program such as examination support documents. The Green Technology Pilot Program will run for twelve months from its effective date. The USPTO may extend the pilot program (with or without modifications) depending on the feedback from the participants and the effectiveness of the pilot program.

Once a petition is granted, the special status applications will be placed on an examiner's special docket prior to the first Office action, on the examiner's amended docket after the first Office action, and will also have special status in any appeal to the BPAI and in the patent publication process.  However, petitions to make special under the Green Technology Pilot Program must be filed before December 8, 2010 and the USPTO will accept only the first 3,000 petitions, provided that the petitions meet several requirements, including:

  • The non-fee petition must be in a nonprovisional, non-reissue application that was filed on or before the date of the notice (December 8, 2009), and at least one day before a first office action is mailed (which may be a restriction requirement) or appears in the Patent Application Information Retrieval (PAIR) system. Continuing applications will not automatically be accorded special status based on papers filed with a petition in a parent application. Each continuing application must on its own meet all requirements for special status.
  • The petition to make special must be accompanied by a request for early publication in compliance with 37 CFR 1.219 and the publication fee set forth in 37 CFR 1.18(d).
  • The application must be classified in one of the may classes identified Section V of the Federal Register notice copied below.
  • The application must have no more than 3 independent claims and 20 total claims, or a preliminary amendment must be filed to reduce the number of claims at or below these thresholds.  Applicants may file a preliminary amendment to cancel the excess claims and/or the multiple dependent claims at the time the petition to make special is filed.
  • The claims must be directed to a single invention and include a statement that if the USPTO determines that the claims are directed to multiple inventions, the applicant will agree to make an election without traverse in a telephonic interview, and elect an invention that meets the eligibility requirements 
  • The claimed invention must materially enhance the quality of the environment or materially contribute to: (1) the discovery or development of renewable energy resources; (2) the more efficient utilization and conservation of energy resources; or (3) greenhouse gas emission reduction, and explain how this standard is met

If applicant files a petition to make special under the Green Technology Pilot Program that does not comply with the requirements set forth in the notice, the USPTO will notify the applicant of the deficiency by issuing a notice and applicant will be given only one opportunity to correct the deficiency within the longer of one month or thirty days.  Otherwise, tithe application will not be eligible for the Green Technology Program.  The time period for reply is not extendable under 37 CFR 1.136(a).

For applications pertaining to environmental quality, the petition to make special must state that special status is sought because the invention materially enhances the quality of the environment by contributing to the restoration or maintenance of the basic life-sustaining natural elements. If the application does not clearly disclose that the claimed invention materially enhances the quality of the environment by contributing to the restoration or maintenance of one of the basic life sustaining natural elements, the petition must be accompanied by a statement signed by the applicant, assignee, or an attorney/agent registered to practice before the USPTO, in explaining how the materiality standard is met. The materiality standard does not permit an applicant to speculate as to how a hypothetical end-user might specially apply the invention in a manner that could materially enhance the quality of the environment. Nor does such standard permit an applicant to enjoy the benefit of advanced examination merely because some minor aspect of the claimed invention may enhance the quality of the environment. See MPEP § 708.02 (item V).
 
For patent applications pertaining to: (1) The discovery or development of renewable energy resources; (2) the more efficient utilization and conservation of energy resources; or (3) the reduction of greenhouse gas emissions, the term ''renewable energy resources'' includes 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. The second category would include inventions relating to the reduction of energy consumption in combustion systems, industrial equipment, and household appliances. The third category listed above would include, but is 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).
 
The petition to make special for an application directed to development of renewable energy or energy conservation, or directed to greenhouse gas emission reduction, must state the basis for the special status (i.e., whether the invention materially contributes to (1) development of renewable energy resources or energy conservation, or (2) greenhouse gas emission reduction). If the application disclosure is not clear on its face that the claimed invention materially contributes to (1) development of renewable energy or energy conservation, or (2) greenhouse gas emission reduction, the petition must be accompanied by a statement signed by the applicant, assignee, or an attorney/agent registered to practice before the USPTO, explaining how the materiality standard is met. The materiality standard does not permit an applicant to speculate as to how a hypothetical end-user might specially apply the invention in a manner that could materially contribute to (1) development of renewable energy or energy conservation, or (2) greenhouse gas emission reduction, nor does the standard permit an applicant to enjoy the benefit of advanced examination merely because some minor aspect of the claimed invention may be directed to (1) development of renewable energy or energy conservation, or (2) greenhouse gas emission reduction. See MPEP § 708.02 (item VI).
 
For USPTO the press release, click here.  For the Federal Register notice with more details of the program and the requirements to participate, click here.  USPTO Director Kappos also provides this entry on his official blog on the subject with links to his remarks from the press conference, as well as press accounts of the announcement in NYTimes.com and WSJ.com.
 
 

The following is a list of the eligible classifications:

A. Alternative Energy Production

1. Agricultural waste (USPC 44/589).

2. Biofuel (USPC 44/605; 44/589).

3. Chemical waste (USPC 110/235–259, 346).

4. For domestic hot water systems (USPC 126/634–680).

5. For passive space heating (USPC 52/173.3).

6. For swimming pools (USPC 126/ 561–568).

7. Fuel cell (USPC 429/12–46).

8. Fuel from animal waste and crop residues (USPC 44/605).

9. Gasification (USPC 48/197R, 197A).

10. Genetically engineered organism (USPC 435/252.3–252.35, 254.11–254.9,257.2, 325–408, 410–431).

11. Geothermal (USPC 60/641.2–641.5; 436/25–33).

12. Harnessing energy from man-made waste (USPC 75/958; 431/5).

13. Hospital waste (USPC 110/235– 259, 346).

14. Hydroelectric (USPC 405/76–78; 60/495–507; 415/25).

15. Industrial waste (USPC 110/235–259, 346).

16. Industrial waste anaerobic digestion (USPC 210/605).

17. Industrial wood waste (USPC 44/589; 44/606).

18. Inertial (e.g., turbine) (USPC 290/51, 54; 60/495–507).

19. Landfill gas (USPC 431/5).

20. Municipal waste (USPC 44/552).

21. Nuclear power—induced nuclear reactions: processes, systems, and elements (USPC 376/all).

22. Nuclear power—reaction motor with electric, nuclear, or radiated energy fluid heating means (USPC 60/203.1).

23. Nuclear power—heating motive fluid by nuclear energy (USPC 60/644.1) Photovoltaic (USPC 136/243–265).

24. Refuse-derived fuel (USPC 44/552).

25. Solar cells (USPC 438/57, 82, 84,85, 86, 90, 93, 94, 96, 97).

26. Solar energy (USPC 126/561–714; 320/101).

27. Solar thermal energy (USPC 126/561–713; 60/641.8–641.15).

28. Water level (e.g., wave or tide) (USPC 405/76–78; 60/495–507).

29. Wind (USPC 290/44, 55; 307/64–66, 82–87; 415/2.1).

B. Energy Conservation

1. Alternative-power vehicle (e.g.,hydrogen) (USPC 180/2.1–2.2, 54.1).

2. Cathode ray tube circuits (USPC 315/150, 151, 199).

3. Commuting, e.g., HOV, teleworking (USPC 705/13).

4. Drag reduction (USPC 105/1.1–1.3; 296/180.1–180.5; 296/181.5).

5. Electric lamp and discharge devices (USPC 313/498–512, 567–643).

6. Electric vehicle (USPC 180/65.1;180/65.21; 320/109; 701/22; 310/1–310).

7. Emission trading, e.g., pollution credits (USPC 705/35–45).

8. Energy storage or distribution (USPC 307/38–41; 700/295–298; 713/300–340).

9. Fuel cell-powered vehicles (USPC 180/65.21; 180/65.31).

10. Human-powered vehicle (USPC 180/205; 280/200–304.5).

11. Hybrid-powered vehicle (USPC 180/65.21–65.29; 73/35.01–35.13, 112–115, 116–119A, 121–132).

12. Incoherent light emitter structure (USPC 257/79, 82, 88–90, 93, 99–103).

13. Land vehicle (USPC 105/49–61 (electric trains); 180/65.1–65.8 (electric cars)).

14. Optical systems and elements (USPC 359/591–598).

15. Roadway, e.g., recycled surface, all-weather bikeways (USPC 404/32–46).

16. Static structures (USPC 52/309.1–309.17, 404.1–404.5, 424–442, 783.1–795.1).

17. Thermal (USPC 702/130–136).

18. Transportation (USPC 361/19, 20, 141, 152, 218).

19. Watercraft drive (electric powered) (USPC 440/6–7).

20. Watercraft drive (human powered) (USPC 440/21–32).

21. Wave-powered boat motors (USPC 440/9).

22. Wind-powered boat motors (USPC 440/8).

23. Wind-powered ships (USPC 114/ 102.1–115).

C. Environmentally Friendly Farming

1. Alternative irrigation technique (USPC 405/36–51).

2. Animal waste disposal or recycling (USPC 210/610–611; 71/11–30).

3. Fertilizer alternative, e.g., composting (USPC 71/8–30).

4. Pollution abatement, soil conservation (USPC 405/15).

5. Water conservation (USPC 137/78.2–78.3; 137/115.01–115.28).

6. Yield enhancement (USPC 504).

D. Environmental Purification, Protection, or Remediation

1. Biodegradable (USPC 383/1; 523/124–128; 525/938; 526/914).

2. Bio-hazard, Disease (permanent containment of malicious virus, bacteria, prion) (USPC 588/249–249.5).

3. Bio-hazard, Disease (destruction of malicious virus, bacteria, prion) (USPC 588/299).

4. Carbon capture or sequestration (USPC 95/139–140; 405/129.1–129.95; 423/220–234).

5. Disaster (e.g., spill, explosion, containment, or cleanup) (USPC 405/129.1–129.95).

6. Environmentally friendly coolants, refrigerants, etc. (USPC 252/71–79).

7. Genetic contamination (USPC 422/1–43).

8. Hazardous or Toxic waste destruction or containment (USPC 588/1–261).

9. In atmosphere (USPC 95/57–81, 149–240).

10. In water (USPC 210/600–808; 405/60).

11. Landfill (USPC 405/129.95).

12. Nuclear waste containment or disposal (USPC 588/1–20, 400).

13. Plants and plant breeding (USPC 800/260–323.3).

14. Post-consumer material (USPC 264/36.1–36.22, 911–921; 521/40–49.8).

15. Recovery of excess process materials or regeneration from waste stream (USPC 162/29, 189–191; 164/5; 521/40–49.8; 562/513).

16. Recycling (USPC 29/403.1–403.4; 75/401–403; 156/94; 264/37.1–37.33).

17. Smokestack (USPC 110/345; 422/900).

18. Soil (USPC 405/128.1–128.9, 129.1–129.95).

19. Toxic material cleanup (USPC 435/626–282).

20. Toxic material permanent containment or destruction (USPC 588/ all).

21. Using microbes or enzymes (USPC 435/262.5).

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There's little question that "green" technology is increasingly critical to preservation of the environment. However, the USPTO's decision definitely appears to be politically motivated. But it's certainly nothing new for politics and patent law to be intertwined. Still, one hopes that Kappos et al. have paid heed not only to the political points scored for this decision, but have also thoroughly considered other potential consequences (both positive and negative) of this preferential treatment. It will be interesting to see how all this unfolds.

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