In a number of previous posts (e.g., here, here, here and here), I and others have reported on the accelerated examination programs for green technology patent applications offered by various national patent/IP offices in countries such as the UK, Korea, Brazil and China.
My most recent article, published last week in the Fall 2012 Issue of the Berkeley Technology Law Journal, analyzes and critiques these programs and suggests some improvements.
Entitled “Building the Global Green Patent Highway: A Proposal for International Harmonization of Green Technology Fast Track Programs,” the article argues that the programs should be harmonized and governed by a single standardized set of rules.
My recommendation flows from the diagnosis that it is very burdensome to a green patent applicant with an international filing strategy to participate in multiple fast track programs. That is, due to the wide variability in rules from country to country, it is both costly and time consuming for applicants and their patent attorneys to select which programs to utilize, to determine whether and how to utilize such programs, and to prepare separate submissions for different programs.
With a harmonized system, there would be no extra legwork, and a single submission – a brief statement of the invention and a conforming patent application – could be filed in each participating patent office.
In my view, the rules for a harmonized green patent fast track system should use a balanced approach that maximizes subject matter eligibility to boost participation yet imposes reasonable process restrictions to prevent significant increases in the workload of patent examiners.
More particularly, the programs should be open to any patent application directed to an invention that confers a “material environment benefit,” a standard which is both expansive, yet with some oversight should keep out putative non-green technology free riders.
Certain restrictions should apply to participating patent applications, however, such as a limit on the total number of claims (I propose 15), the number of independent claims (I propose 2), and limitation to a single invention with a telephonic or email election required should the examiner deem otherwise.
The article concludes that this standardized and balanced international system of expedited examination for green patent applications would encourage greater participation in the fast track programs and reduce the time to grant for a larger number of green patents, thereby fostering development and diffusion of green technologies.
Eric Lane is a patent attorney at McKenna Long & Aldridge LLP in San Diego and the author of Green Patent Blog. Mr. Lane can be reached at elane@mckennalong.com
