The Wall Street Journal is reporting that the PTO is proposing a three-track patent application system that would allow applicants to pay an increased fee to have their applications examined on a fast track. The second tier would follow the current standard examination track, while the slowest track would permit applicants to delay examination for up to 30 months.
This sounds suspiciously similar to systems that have been proposed for a number of years, such as by law professors. See Osenga, Kristen, Entrance Ramps, Tolls, and Express Lanes–Proposals for Decreasing Traffic Congestion in the Patent Office, 33 Florida State Law Review 119 (2005). In full disclosure, Professor Osenga is my wife.
Director Kappos notes in the WSJ article that not all patent applications need to be examined at the same rate. Some applicants desire a very quick examination and patent, others prefer delay. The article does not include many details on the plan that could be published for comment shortly, but presumably the fast track would require a substantial increase over the current $1,090 standard application fee. The second track could use the current fee, while the slower track may permit examination fees to be delayed as in a deferred examination regime. Presumably, small entities would continue to be entitled to discounted filing fees.
In many instances, an applicant needs a patent quickly because of the short life cycle of the technology or to woo investors. In other instances, such as when a product requires regulatory review or when money is tight for patent filings, delay is what an applicant needs before being required to proceed with examination.
As noted in the article, the current system that permits applicants to opt out of the 18 month publication requirement could prove a bit problematic for a system that includes a 30 month delay period. Such a delay could cause problems with secret applications springing to life later that have early filing dates. Requiring all applications to be published or at least those that seek delay would alleviate this problem.
With all of the political issues facing the Senate, such as a Supreme Court confirmation and numerous lower court appointments, it is uncertain whether patent reform will make it to a vote this year. The face-off with the House also makes passage less likely. The House has proposed giving the PTO fee-setting authority and eliminating false marking cases, while the Senate is insisting on more comprehensive reform.
Does the PTO proposal require legislative action or can it be done by rule? The PTO obviously believes it can be implemented by rule. Perhaps it can.
HT: Hal Wegner