The Death of Green Technology at the U.S. Patent Office

By Jeffrey M. Kaden

Promoting environmentally-friendly innovation has become an important feature for national and international environmental policy in the 21st century. ‘Green’ innovation is envisioned by most governments as an essential way to address environmental issues and promote sustainable development and growth.

Against this background, a number of national intellectual property offices around the world have tried implementing programs to ‘fast track’ green patent applications. Many of these are still in place. The common objective of these programs is to allow patent applications covering ‘green’ technologies to be examined in advance of all other patent applications. As a consequence, the time needed to obtain a granted patent directed to green technology could be significantly reduced from several years to perhaps just a few months.

There are several advantages to a reduced patent examination process. It allows patent applicants to start licensing their technologies sooner. It reduces the time for producing and commercializing green technologies. Possessing a issued patent may also help start-up companies to raise investment capital.

Along these lines, back in 2009, the United States Patent Office implemented a “Green Technology Pilot Program.” Under the program, a U.S. patent applicant could have a patent application examined more quickly. Under the pilot program, a patent applicant was able to have an application advanced out of turn (accorded special status) for examination purposes.

The Green Technologies Pilot Program was officially implemented in the U.S. in December 2009. It was made available to patent applications specifically pertaining to environmental quality, energy conservation, development of renewable energy resources, and greenhouse gas emission reduction. To participate in the program, the patent applicant was required to file a petition with the U.S. Patent Office. Importantly, no government fee was required for participating in the program.

So what happened to the program? Unfortunately, the program had a limitation on the number patent applications that could be filed and that number limitation was reached in 2011. And while it would have been possible (and probably made sense) to extend the program, the federal government never implemented such an extension. Accordingly, green technology patent applications today are treated in the very same way as all other patent applications.

There are other accelerated examination options, but they are available for patent applications directed to all technologies including green technology. One option is the Patent Office’s  Prioritized Examination Program (Track One). Under the Track One program, an application is advanced out of turn for examination so long as a hefty $4,000 government petition fee is paid. In many cases, this option is problematic. For example, most start-up companies and incubators can barely afford to file a patent application let alone incur the additional cost of requesting prioritized examination.

Another program in the United States for expediting examination of a patent application is the filing of a request for accelerated examination. However, this option is less than desirable. Requesting accelerated examination requires the patent applicant to conduct a prior art search and prepare an examination support document explaining how each of the patent application claims is patentable over the references found in the search. Thus, a patent applicant will be required to characterize the patent application claims, and these characterizations could be used against the applicant in later litigation. The applicant must also pay to conduct the prior art search and prepare the examination support document and the legal costs for both will be significant.

A third option in the U.S. is filing a Petition to expedite examination based on the patent applicant’s age (65 or older) or health. As can be appreciated, this option is not available to most patent applicants.

So where does “green” innovation in the patent world stand today in the United States? Unfortunately, it continues to be treated no differently at the United States Patent Office than any other technology. To this author, this makes absolutely no sense. With climate change in the news every day along with the continued and ever expanding pollution of the air, water and soil, ‘green’ innovation should be a priority everywhere, including at the U.S. Patent Office. Unfortunately, and especially with the current U.S. administration,  ‘green innovation’ is not only not a priority, it is considered to be virtually irrelevant.