Secret Patent Review Process Revealed

by AEON Law on December 15, 2014

US Government

Said to have secret system

For stalling patents

According to Yahoo! Tech, the US government has a (previously) secret system for blog 12.15.14 delaying the approval of “controversial or inconvenient” patents. The program is called the Sensitive Application Warning System (SAWS) and it’s detailed in a 50-page document requested by a US law firm under the Freedom of Information Act. When a patent application is submitted by a major law firm, it usually requires approval by two patent examiners and the process typically takes 22 months from filing to issuance, according to the firm that sought the materials. The US Patent Office’s own website says the patent process usually takes 29.1 months, taking into account all types of applicants. According to the law firm, patent applications on the SAWS track are placed in “patent purgatory” and must be approved by three to nine people at the Patent Office. This can delay applications for years. Applicants aren’t notified if their patents are in the SAWS track, and the USPTO hasn’t yet revealed which patents are in the SAWS system.

The patent attorney who filed the Freedom of Information request found out about SAWS when he submitted an application for a “mundane” invention by a startup that was being sued by a large company in the same market. His client paid extra to have the application fast-tracked. Instead, when the attorney and his client met with the patent examiner, the examiner said that “special approvals” would delay the application and then allegedly said, “That’s secret, I’m not supposed to say it.” The SAWS program isn’t mentioned in the 1,500 page Patent Office manual of examination procedures.

Patents can be placed in the SAWS track for reasons that include:

· Being broad or pioneering in scope

· Having “seemingly frivolous or silly subject matter”

· “dealing with inventions, which, if issued, would potentially generate unwanted media coverage (i.e., news, blogs, forums)”

· Involving smartphones, internet-enabled systems, or educational processes

· Involving room-temperature superconductors

· Involving business method claims

Examples of subject matter “generating excessive media coverage” include:

· AIDS/HIV vaccines and/or methods of prevention

· Human fetal cell-based inventions

· Tobacco plants engineered for increased nicotine production

· Treatments to increase intelligence

Patent examiners are advised to be “liberal” in assigning patent applications to SAWS. The actual papers obtained may be viewed at the Yahoo! link above. It’s too early to say whether this revelation will have any impact on patent filing practices.

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