In my previous post, I explained Canada's new accelerated examination process for "green" technologies. Of course, the USPTO was more than a year ahead of Canada, implementing its Green Technology Pilot Program back in September 2009.

The Green Technology Pilot Program allows applicants to petition for accelerated examination of applications pertaining to green technologies, including applications pertaining to environmental quality, energy conservation, development of renewable energy resources, and greenhouse gas emission reduction. To qualify for advancement out of turn, the petition must be filed electronically with a request for early publication and the publication fee.

The application must also contain three or fewer independent claims (and a total of twenty or fewer claims). Most importantly, the claims must be directed to a single invention that materially enhances the quality of the environment. This marks a clear difference from Canada's program in which the applicant merely needs to declare in good faith that the invention will mitigate environmental impacts. Music to every applicant's ears, the USPTO charges no fee for the petition under this program. Moreover no troublesome "examination support document" is required, and thus the Applicant need not put any characterizations of prior art on the record that might come back to haunt it later in prosecution or litigation.

The USPTO has chosen to cap the program at the first 3,000 petitions granted. Nevertheless, there has hardly been a rush to take advantage of the program. As of two weeks ago, merely 1681 of 3251 total petitions had been granted, with only another 327 pending. Accordingly, there is room for at least another thousand petitions, which may explain the USPTO's incremental expansion of the eligibility, including the removal of the classification requirement, the inclusion of patents filed after December 8, 2009, and extension of the program end date to December 31, 2011.

Why have nearly half of the petitions been rejected? It may have something to do with vague and perhaps narrowly interpreted standard of "materiality". Tellingly, the USPTO strongly recommends that the applicant provide a statement pertaining to the materiality standard if the application disclosure is not clear on its face as to the basis for the special status of the invention. As the USPTO has further foreshadowed, what may seem “clear on its face” to an applicant who has full appreciation of the invention may not be clear to the official deciding the petition. The Federal Register notice of December 8, 2009 goes the furthest towards an explanation, stating that the standard does not permit an applicant to speculate as to how a hypothetical end-user might specially apply the invention in a manner that could materially enhance the quality of the environment. Nor does such standard permit an applicant to enjoy the benefit of advanced examination merely because some minor aspect of the claimed invention may enhance the quality of the environment. Not much help. The standard was no more clear to me after consulting two examiners associated with the program (although both expressed a willingness to informally vet the materiality of the invention's enhancement of the environment prior to filing of a petition. For example, my example of a lightweight shipping container that required significantly less fuel to transport was rejected by both examiners).

Given the poor success rate of petitions, however, it would seem that an "inevitability" standard is applied, such that practice of the invention would necessarily or inevitably enhance the quality of the environment. Obviously, it ain't easy being green, and the USPTO may need to expand its standard if it hopes to grant another 1000 petitions before December 31.