Jump to Navigation


Hurry - For a Limited Time Only and While Supplies Last: Green Technology Patent Applications Get the Green Light to Move to the Front of the Line

December 15, 2009

In an effort to accelerate the development and deployment of green technology, create more jobs, and promote U.S. competitiveness in this market, the U.S. Patent and Trademark Office ("USPTO") recently introduced the Green Technology Pilot Program ("Program") to accelerate the examination of "green" technology patent applications.1 This is the second major new initiative introduced by newly appointed Director Kappos that is aimed at expediting what he believes are important inventions through the application process.2 

Under normal USPTO procedures, new patent applications are taken up for examination in the order in which they are filed, with the average pendency for applications in these fields being approximately two and a half years to a first Office Action.3 Applications that qualify for acceleration under the Program, however, will be placed on a special fast track, which will likely result in applications seeing their first Office Action in approximately 16 months. Under the announced Program, the USPTO has most notably eliminated the requirement of filing an "examination support document,"4  thereby perhaps greatly increasing the incentive for applicants to participate in the acceleration process. Clearly, this is a tremendous commitment by the USPTO to ensure that critical, environmentally-friendly inventions find their way to the marketplace promptly.

To qualify under the Program, the applicant must be one of the first 3,000 applicants to file a petition with the USPTO claiming that their application meets all the requirements under the Program. In order to participate under the Program, the application must be:

  • a non-reissue, non-provisional utility application filed prior to December 8, 2009;
  • classified in one of the following classifications: (a) Alternative Energy Production, (b) Energy Conservation, (c) Environmentally Friendly Farming, (d) Environmental Purification, Protection, or Remediation;
  • in compliance with claim requirements;5
  • directed to a single invention6 and have claims that materially enhance the quality of the environment, or that materially contribute to: (a) the discovery or development of renewable energy resources, (b) the more efficient utilization and conservation of energy resources, or (c) greenhouse gas emission reduction;7
  • filed electronically;
  • filed prior to issuance of a first Office Action; and
  • accompanied by a request for early publication.

The USPTO estimates that approximately 25,000 of the currently pending patent applications meet the requirements listed above. As the Program is limited to the first 3,000 that apply, it is imperative for applicants to decide quickly. Applicants should carefully weigh the Program's benefits against the requirements noted above; most notably, claim limitations, abbreviated restriction practice, and early publication. If you believe some of your pending applications may qualify under the Program, please contact any one of the authors of this alert, or your Bracewell & Giuliani attorney.



1 E.g., applications pertaining to environmental quality, energy conservation, development of renewable energy resources, or greenhouse gas emission reduction. See Pilot Program for Green Technologies Including Greenhouse Gas Reduction, 74 Fed. Reg. 64666, 64668 (Dec. 7, 2009).

2 The first initiative focused on reducing the backlog in all fields of technology by allowing "Small Entities" to abandon pending applications in exchange for acceleration of their more important applications. For a more detailed explanation of this first initiative, please click here.

3 See Press Release from USPTO, located here ("Patent applications are normally taken up for examination in the order that they are filed. The average pendency time for applications in green technology areas is approximately 30 months to a first office action and 40 months to a final decision.").

4 An "examination support document" ("ESD") is essentially an applicant produced Office Action. The ESD must include: (a) a statement that a prior art search was done, as well as the fields of search and search logic, (b) a listing of the references deemed most closely related to the pending claims, (c) an identification in each reference where each element of the claim can be found, (d) a detailed explanation pointing out why each independent claim is allowable over the cited art, and (d) a showing where each limitation of each claim is found in the Specification of the application.

5 The application must have three or fewer independent claims and 20 or fewer total claims.  A preliminary amendment can be made to bring an application into compliance with this requirement.

6 Applicant must also agree to make an election without traverse over the telephone if the USPTO asserts there is more than one invention.

7 See Pilot Program for Green Technologies Including Greenhouse Gas Reduction, 74 Fed. Reg. at 64667-68 (Dec. 7, 2009).