There is a huge backlog of approximately 750,000 patent applications in various stages of review at the U.S. Patent and Trademark Office (USPTO). In 2009, it took an average of 34.6 months for patent applications to be reviewed compared to an average 26.7 months five years earlier.

There have long been calls for the USPTO to review applications and issue patents in a timelier manner. Now, if they are willing to pay additional fees, inventors and their employers can receive expedited reviews of their applications.

The proposed new process

Last week U.S. Patent and Trademark Office chief David Kappos proposed an expedited application review process for inventors. The planned expedited process means there will be a three-track system to review U.S. patent applications. The expedited process would allow applicants to pay an unspecified fee in addition to standard $1,090 filing fee. In return for paying this fee, the patent application in question will receive priority in the patent review process. USPTO officials haven't decided yet how much the expedited review process would cost.

In the traditional process, patent applications are processed in the order they are submitted. The new process will let companies and inventors get patent applications with the greatest commercial potential evaluated before other applications submitted earlier. The result would be for the expedited application review process reduced to one year from submitting the patent application – if everything goes according to plan.The new system would become effective in 2011. Before it does, there will be a public comment period.

This writer's concerns

This writer has several concerns with the system. Will devoting some patent examiners to expedited reviews slow down the process for the remaining patent applicants who do not request expedited reviews? Will the extra revenue brought in by higher fees charged for the expedited process be used to hire additional patent examiners to accelerate the traditional patent application review process? Or will applicants using the current application review process see the time required to receive a patent get longer?

Is there a fairness issue associated with allowing applicants with deep pockets to receive favored treatment compared to independent inventors and small firms with limited financial resources? My guess on this last question is probably not since USPTO fees traditionally have been quite modest compared to fees paid to patent attorneys or agents to draft patent applications.

Another issue is that U.S. patents are awarded to the first to invent (compared to most of the rest of the world where the first to file receives the patent). If a company pays for expedited processing, it could be awarded its patent long before a company that was first to invent but used the conventional patent application process. This second company then would have to pay for the expensive process to get the other firm's patent invalidated and their own issued. This may be beyond the financial means of independent inventors and small firms. To receive anything from their invention, they could be forced to license their technology to the company that received the benefit of expedited patent application processing.

What do you think of all this? Please post your comments.