Innovation at the U.S. Patent Office: Director Kappos’ Three-Track Examination Proposal

Posted by Horacio Gutierrez
Corporate Vice President and Deputy General Counsel

For more than a decade, the U.S. Patent and Trademark Office has been criticized for long delays in the processing of patent applications and for issues around patent quality. Both can have negative impacts on innovation, as the USPTO recognized in a recent White Paper.

To address these problems, USPTO has done some innovating of its own. Director David Kappos announced a proposal earlier this month that grapples with the backlog issue and offers an opportunity for applicants to work with the Office to assign priority to pending applications. The “Three-Track” proposal would enable applicants, when they file, to request expedited review under Track I or delayed examination under Track III. Applicants that do not request either option would have their applications processed under current procedures (Track II). We applaud the creative thinking and leadership behind the Three Track initiative. If carefully implemented, it will have real benefits for innovators of all sizes, from companies like Microsoft to small and medium-sized enterprises, as well as individual inventors and universities.

The Three Track initiative aims to provide applicants with the type of examination they need, while also enabling USPTO to improve its efficiency by better assigning resources and reusing search and examination work done by other patent offices. USPTO’s intention to require mandatory publication is also the right way to go.

Overall, we believe the simplified requirements for Track I will be more useful than the Office’s current and relatively little-used expedited processing procedure. And we applaud the approach of Track III for its potential to build on commonsense work-sharing practices, including the Patent Prosecution Highway and projects under the IP5 initiative.

USPTO will hold a public meeting on the proposal at its Alexandria, Virginia, headquarters on July 20 and has invited the public to submit written comments by August 20. Microsoft looks forward to participating in the public meeting and the comment process and to working with the Office as this important proposal moves forward.

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