The Three-Track System

The Three-Track System: Proposed Changes to the U.S. Patent Revue Process

Inventors seeking U.S. patents may be able fast-track their applications’ reviews by paying an additional surcharge. The unspecified fee will be levied on top of the existing charge for a patent review and would likely result in a final decision within a year.

The proposed changes to the U.S. Patent and Trademark Office’s review process come in response to pressure to curb wait times which have skyrocket in the past several years. In 2003, inventors could expect a decision in just under 27 months, on average, compared with nearly 35 months in 2009. As patent office chief David Kappos points out, “Not every application needs to go at the same speed.”

The new system would divide the queue into three “tracks”. The middle track is similar to the standard process used today, but for an additional fee applicants will be able to have their application moved onto the fast track where they can expect, ideally, to have a first action on the patent’s merits within four months and after given priority status, a final decision within a year. Conversely, applicants not in a rush to get approval may, for a reduced fee, put their application into the third, slowest line, where they can leave it for up to 30 months before being examined. Kappos has also tossed around the idea of splitting up the slow track and its fees into an application and a search stage, and later if the applicant wishes to move forward, the full examination stage.

The change in the USPTO’s system would not mark the first time a government department has charged fees to expedite applications. There is already a similar system in place for passport applicants to speed things up for an extra $60, and for the last year or so the patent office has selectively offered the fast track to applicants working on “green” technologies and those with multiple applications who are willing to drop one.

Critics of the proposed changes worry that the new system will favor big businesses who can afford to pay the additional fees for their inventions, and leave the little guy in the dust. However, small-scale inventors currently pay 50% less than the standard $1090 application fee, and Kappos has suggested that small businesses may, with Congressional approval, receive these same discounts on the fast track, which would keep the playing field as level as it currently is under the first-come, first-served system. Fast track fees will likely be set prohibitively high in order to prevent big businesses, who will receive no discount, from gaining the advantage as a result of the changes.

It has been proposed that the slow track also may give an unfair advantage to some by enabling businesses to hide their inventions from other companies, thereby slowing the traditional process of innovation where one development leads to another. The American Intellectual Property Law Association’s Q. Todd Dickinson, who raised this concern, suggested the problem may be avoided if there were a provision making it mandatory that applications be published within 18 months of filing for a patent, regardless of approval.

The new three-track system stands to solve two problems at once: bottlenecks in the patent review process and the U.S. Patent and Trademark Office’s ongoing money woes. It is part of a greater effort by Kappos and the Obama administration to improve the overall efficiency of the patent office. Under the current process, everyone alike is suffering due to the bottleneck in applications. With the new system, Kappos hopes to be able to bring wait times for the middle track to less than 20 months, which would mark the lowest in nearly a decade, with the added benefit that fees for fast-tracking projects will inject some cash into the struggling USPTO’s coffers.

Kappos’ proposed changes may also ease another current problem in which delays have become so long that by the time patents are approved, the technologies concerned are no longer necessarily new. Such incidents have led to lengthy and expensive legal battles, the costs of which far exceed the new fees, which in any case are optional.