Following closely on the heels of the new examiner guidelines, the first annual Board of Patent Appeals and Interferences conference, and a host of other intraoffice changes and proposals, the USPTO recently published a proposal for a new three-track patent filing system, initiating the notice-and-comment process.

On June 4^th the notice appeared in the Federal register, soliciting comments from the public and practitioners on the proposal, and the public meeting was held July 20 at the Patent office.  Patent blogs, employees and pratitioners alike have since weighed in on the potential rules changes, which look likely to move forward with little substantive change.

Essentially, the new three-tier patent filing system would allow certain applicants to receive special status and a quicker application-to-final-judgment pendency, as well as allow others to request slower or low-priority status.  Track I would allow those interested in speedy prosecutions –likely pharmaceuticals, fast-turnover technology, and computer programming applicants—to pay a higher fee to receive priority over all other applications (or at least the special status and shorter reply periods that would likely lead to quicker disposals).  Track II would be the status quo, and Track III would be for patent practitioners that actually don’t mind lengthy prosecution cycles (or want to increase prosecution times for some strategic reason).

Gene Quinn at IPWatchdog says the three-tier system will “provide applicants greater control over their applications” and promote “greater efficiency” in the process.  The Patent Law Practice Center, run by the Patent Law Institute, blogs that according to practitioners, Track III may actually be very attractive for those applicants who are subject to lengthy regulatory action by the FDA, or those whose industries have not entirely matured.  Another use could be for the strategic purpose of filing continuation applications off of granted patents in a crowded technology, in order to produce and collect other prior art against their competitors or potential infringers and “wash” the field with IDS disclosures and PTO awareness, generating ammunition for potential or pending litigation.

Lastly, the Intellectual Property Owner’s Association weighed in with pros and cons of the new rules in a lengthy discussion filed with the office, which is discussed in detail over at patentdocs.org.  They found that the rules may favor foreign applicants, which are mandatory delayed under the proposed rules.  They argue that this could discourage foreign applicants, and would only lead to a temporary and illusory patent application backlog reduction.

Ultimately, the track seems to allow applicants with more money to benefit from an expedited process (if so desired), which begs the question:  Is the USPTO’s primary interest in increasing the efficient grant of patents to well-moneyed—and overwhelmingly corporate—applicants, or is it granting patent protection to new and useful inventions, regardless of the economic results?

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