After 10 months, some impact can already be seen from the pilot program (Pilot Program) the United States Patent and Trademark Office (USPTO) announced last December to expedite the examination of patent applications directed to certain green technology inventions. The Pilot Program was intended to reduce the time required to patent these inventions by an average of one year, contrasting this pendency reduction to the average time of 40 months to final decision for green technology inventions.

As originally set forth, to qualify for participation in the Pilot Program, applicants had to satisfy several requirements: (1) the application must be a non-reissue, non-reexamination, and non-provisional utility application filed prior to December 8, 2009; (2) the application must be classified as one of a list of enumerated green technologies; (3) the application must meet certain formalities requirements, such as having fewer than 20 total claims and not yet having received a substantive office action from the USPTO; and (4) the application must claim an invention material to green technology.

While the Pilot Program was well received in the green technology community, many potential participants found the technology classification requirement to be confusing and unduly restrictive. The USPTO's decision to restrict participation to only certain technologies was viewed by many as excluding several important areas of green technology. The technology restriction also was a primary reason that the USPTO was denying many of the petitions filed. Recognizing the problem, on May 21, 2010, the USPTO announced the elimination of its classification requirement for participation in the Pilot Program. According to the USPTO, the classification requirement was originally intended to assist the USPTO in balancing patent examiners' workloads and to gauge the resources needed to run the Pilot Program. Having met these objectives by other means, the classification requirement was no longer necessary. It should be noted that, although the requirement regarding classification has been withdrawn, an application must still claim an invention material to green technology to qualify. For purposes of the Pilot Program, the USPTO has stated that material inventions include those that: (1) materially enhance the quality of the environment, (2) materially contribute to the discovery or development of renewable energy resources, (3) materially contribute to the more efficient utilization and conservation of energy resources, and (4) materially contribute to greenhouse-gas emission reduction.

Eliminating the classification requirement has increased both the number of petitions to participate in the Pilot Program and the percentage of applicants granted expedited status. A review of data on the Pilot Program indicates that while the number of petitions being filed has not increased significantly, the percentage of those petitions that are granted has, due to the removal of the technology restriction. Interestingly, the elimination did little to affect the distribution of technology broadly represented in the Pilot Program. The distribution of petitions by technology group within the USTPO classification scheme remained relatively steady. The top three broad technology areas represented by petitions were chemical and materials engineering (approximately 30 percent), semiconductors and electrical arts (approximately 25), and mechanical arts (approximately 20 percent).

In light of the expansion of the Pilot Program, it may present an attractive opportunity for patent applicants in the green technology area, particularly for those companies that previously considered it, but whose technology was not originally included. The Pilot Program was originally capped at 3,000 participants. In the nearly 10 months since the Pilot Program started, slightly more than 1,500 petitions have been filed, with more than 700 of those having been approved for inclusion in the program. Interested patent applicants should act quickly before the Pilot Program reaches capacity.