Green Means Go for Patents

Speed up the patent process through the USPTO’s green program
By Adonis Neblett and Todd Taylor | December 02, 2010

Green can mean many things:  money, environmentally friendly, and under the Green Technology Pilot Program at the U.S. Patent & Trademark Office, it means “go” for many patent applications involving clean/green technology. These applications get to bypass much of the historical sludge that has bogged down patent applications and will be examined on an expedited basis. The belief seems to be that these applications need to move faster in order to help alleviate our energy and environmental issues.

Patent applications that are accepted into the USPTO’s green program are given higher priority and examined much more rapidly. Such applications are accorded special status—the USPTO’s most exclusive designation—as they await action. They also carry the special designation on appeal, and in the patent publication process. After the first action, such applications are accorded a status that is lower than special, yet still prioritized.

The bottom line is that participating in the USPTO’s green program means that your green patent applications will reach final resolution much sooner than they otherwise would. Not all green patent applications are eligible for the USPTO’s green program though. The program has both technology and formal requirements.

To be eligible, the patent application must be directed to an invention that “materially enhances the quality of the environment by contributing to the restoration or maintenance of the basic life-sustaining natural elements; materially contributes to the discovery or development of renewable energy resources,” which include “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; materially contributes to the more efficient utilization and conservation of energy resources,” a category that “would include inventions relating to the reduction of energy consumption in combustion systems, industrial equipment, and household appliances; materially contributes to greenhouse gas emission reduction,” a category that includes “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).” Additionally, the USPTO’s classification system—the system that determines which applications are assigned to which examiners—must classify the application into one of the established green technology classes.

In addition to the technology requirements, there are also formal requirements. The application must have no more than three independent claims and no more than 20 total claims, though applications that do not meet this criterion can be cured with a preliminary amendment. Green patent applicants wishing to participate in the USPTO’s green program must file a “Petition to Make Special under the Green Technology Pilot Program.” The petition must choose one of the technology eligibility requirements listed above and, “if the application disclosure is not clear on its face,” explain how the application meets that requirement. The official notice emphasizes that this explanation must not rely on “speculat[ion] as to how a hypothetical end-user might specially apply the invention.”

The USPTO’s green program represents an opportunity for cleantech companies to strengthen their patent position in an increasingly competitive environment. Since the program began in December 2009, a total of 790 petitions have been granted to green technology patent applicants, and 94 patents have been issued. In contrast to taking an average of 30 months for nongreen applications to receive their first USPTO action, green applications in the pilot program had an average time, between the approval of a green technology petition and the first action on an application, of just 49 days. Some green patent applications have even been issued within a year of the filing date, a speed akin to Warp 11 for the USPTO.

If you have a patentable idea that meets these criteria, don’t delay in filing, however. The program, still a pilot, is set to expire Dec. 31, 2011 and is already receiving a large number of filings. Talk to an experienced patent lawyer soon before Green turns from “go” to “goo.”

Authors: Adonis Neblett, Todd Taylor
Attorneys, Fredrikson & Byron