Currently, there is a backlog of approximately 750,000 patent applications pending in the United States Patent and Trademark Office.  In the words of Gary Locke, U.S. Secretary of Commerce:
    
[T]hat's a big problem, because innovation is the lifeblood of the U.S. economy.  The introduction of new products and services accounts for three-quarters of America's annual growth rate since World War II.  This innovation is fueled by business, inventors and entrepreneurs who depend on patent protection to attract capital investment and to promote and protect their products and services in the global marketplace.  Today, America's patent system--and by extension our entire innovation system--isn't working.  As a result, we are jeopardizing our edge in the global economy.

Depending on a number of factors, including the particular area of technology, one can expect the time from filing a patent application up until the date the patent is granted to take on average about four to six years.  This delay is problematic for a number of reasons acknowledged by Secretary Locke.

One of the reasons for the rising tide of patent applications, not only in the United States but in the patent offices of major industrialized nations around the world, is the now common practice of filing patent applications in the country in which the invention originated, as well as filing corresponding applications in multiple countries around the globe.

So the question is what, if anything, can be done to obtain a patent more quickly.  While the Patent Office has a number of different procedures in place which purport to accelerate the examination process, experience has shown many of these procedures have not been effective or readily accessible.

Since "clean tech" or "green tech" has been singled out in the United States as a strategic priority for economic development, and for more altruistic reasons, the Patent Office has instituted an accelerated examination procedure for patent applications directed to clean or green technology-related inventions.

Great, so problem solved if you are trying to patent a clean/green-type invention, right?  Unfortunately, the program has a significant deficiencies.  For instance, there are strict limitations placed on the number of claims that can be presented for examination, and only the first 3,000 applications filed before December 8, 2009 that meet criteria for accelerated examination under the program are eligible.  Interestingly, as of June 2010, only about 10% of the 3,000 application cap had been reached.

One accelerated examination initiative undertaken by the Patent Office appears to hold more promise for all patent applicants, regardless of the subject matter of the invention.  This initiative is called the "Patent Prosecution Highway" or "PPH."  A Patent Prosecution Highway is a formalized work sharing agreement, where two or more countries agree that if a patent claim is allowed in one country, the applicant can ask to have a corresponding case examined out of turn in the other country.  Since each country has its own laws, there can be no agreement to automatically grant a patent in one country based on favorable examination in another country.  However, statistics taken from the PPH program between Japan and the United States indicate that the odds of obtaining a patent by utilizing the PPH far exceed those of patent applications examined according to normal procedures.  Taking as an example a situation where allowed claims are obtained in a case filed first in Japan, then using the PPH in the corresponding U.S. case,  the allowance rate is an astounding 95%, more that twice the rate of allowance of a patent examined in the U.S. Patent Office under normal examination procedures.

Unlike other accelerated examination procedures offered by the Patent Office, the process for utilizing the PPH is relatively simple.  Once an application has been accepted for accelerated examination under the PPH, examination can proceed very quickly, with a high probability for success, as noted above.  In short, the time and cost savings which can be realized utilizing the PPH to prosecute and obtain patents for an invention on a global basis can be extremely significant.

Of course, each situation is different, requiring an independent formulation of an appropriate strategy for achieving a particular set of objectives.  These objectives may or may not be best served by utilizing the Patent Prosecution Highway.

If you would like to discuss your particular situation and determine whether a patent filing strategy which utilizes the PPH, or other accelerated examination procedure, can help you best achieve your business goals and objectives, please contact Buchanan Ingersoll & Rooney's Intellectual Property Group.