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Accelerated Patent Examination a Bad Bet

Boy, do I love it when I am right. I have blogged in the past about the United States Patent and Trademark Office’s (USPTO) new Accelerated Examination procedure for patent applications. Faster applications sounds like a great idea for both the inventor and the USPTO. Right? Well, half right anyway.

As a patent lawyer, whenever I see the USPTO making rule changes it makes the hair on the back of my neck stand on end. This one had me looking like I had my hand on a Van De Graaf generator (Sorry for the geek reference. Non-geeks feel free to look it up in Google Images). Right out of the blocks I blogged about the dangers of filing under the Accelerated Examination procedure. I have not recommended the procedure to any of my clients and have not filed any accelerated examination applications on their behalf.

Patent lawyer Stephen Nipper of The Invent Blog blogged recently about the USPTO denying the entire first round of Accelerated Examination patent applications. Although the veracity of the anonymously quoted source’s statement “Absolutely No Applications” were approved out of the first batch is questionable, I have no doubt the numbers are extremely high. The sample rejection noted in Nipper’s blog indicates that the USPTO is rejecting accelerated examination applications because the patent lawyer failed to conduct a preliminary search in the appropriate USPTO patent classes and subclasses.

The problem is that until the patent lawyer receives the rejection accelerated examination application, he or she would have no idea what the USPTO considers, in its highly subjective opinion, to be the appropriate classes and subclasses. Given the subjectivity of such an analysis, the USPTO could indeed reject every single accelerated examination application. I will leave it to patent lawyers with more hubris than I possess (assuming some exist) to prove the error of that theory.

Now, if we could just do something about the provisional patent application . . .

Brett Trout

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