On December 8, 2009, the U.S. Patent & Trademark Office (USPTO) published notice of its Pilot Program for Green Technologies Including Greenhouse Gas Reduction. The pilot program allows certain patent applications involving "green technologies" to be granted special status to accelerate their examination.

Eligible applications under the pilot program include those pertaining to environmental quality, energy conservation, development of renewable energy resources, or greenhouse gas emission reduction. To be considered for this special status, the application must be pending before December 8, 2009, and must not have already received a first office action (including an action containing only a restriction requirement). In addition, the applicant must electronically file a "petition to make special" before December 8, 2010, according to the following requirements:

  • The application must be a non-provisional utility application filed under 35 U.S.C. 111(a) or 35 U.S.C. 371. Reissue and reexamination applications are ineligible.
  • The application must fall within one of approximately 79 patent classifications set forth in the pilot program notice.
  • The application must not contain more than three independent claims and 20 total claims.
  • The petition must be accompanied by a request for early publication of the application.
  • The applicant must agree to make a telephonic election without argument if the USPTO determines that more than one invention is being claimed.

If the application itself does not explain how the invention materially enhances environmental quality by restoring or maintaining life-sustaining natural elements, or how the invention contributes to the discovery or development of renewable energy resources or their efficient utilization and conservation, or the reduction of greenhouse gas emissions, then such an explanation must accompany the petition.

Although the USPTO estimates that approximately 25,000 currently pending patent applications meet these eligibility requirements, the USPTO will accept only the first 3,000 petitions before reevaluating its workload and resource requirements. According to the USPTO, acceptance into this pilot program would reduce average pendency time—which for "green technology" applications is about 30 months to a first office action and 40 months to a final decision—by about 12 months.

Patent applicants considering this pilot program should carefully weigh the potential time acceleration benefits against the submission requirements and other limitations, including early publication, abbreviated restriction practice, and claim number limits. Accelerated examination is currently available for certain "green technology" patent applications outside of this pilot program, but the pilot program encourages participation by eliminating the petition fee as well as the requirement for an "examination support document," which many patent applicants regard as too time-consuming and risk-laden to prepare in all but the most extreme of circumstances.

In announcing the pilot program, USPTO Director David Kappos pledged to provide the public with regular updates on key metrics related to the progression of the program, and to establish a forum for online public feedback about the program.

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