Entrepreneurs
and established companies alike depend on the U.S. Patent and Trademark
Office to legally protect their inventions. But the Patent Office has been using a secret system to withhold the approval of some applications.
Newly
released documents reveal that the office, tasked with evaluating and
protecting the rights to intellectual property, has a covert system for
delaying controversial or inconvenient patents. It’s a system that
attorneys say, if abused, could function as a way to limit or stomp out
emerging companies.
Before today, the program — named
the Sensitive Application Warning System (SAWS) — has been mentioned
only anecdotally by examiners who work in or with the office, and in a
government memo that was leaked in March 2006.
However, a new 50-page document obtained by a law firm’s Freedom of
Information Act request shows the sweeping scope and conflicting
interests of this particular set of rules. The law firm behind the
request, Kilpatrick Townsend & Stockton LLP, frequently represents major tech companies, including Apple, Google, Twitter, and Oracle.
Delays by design
When
an application is submitted for a patent from a major law firm, it
usually requires the approval of one or two examiners who work within
the Patent Office. For Thomas Franklin, a partner at Kilpatrick
Townsend, applications that he prosecutes typically issue as patents 22
months after filing. (Though the USPTO’s website estimates the
average patent pendency time to be 29.1 months, that figure considers
independent applicants who are not represented by powerhouse law firms.)
Any application that is
categorized in SAWS, however, is placed in a special type of patent
purgatory. SAWS-marked patents must be approved by anywhere from three
to nine people and can be delayed for years. There is no official
channel to notify an applicant once her patent is placed in the system,
and the Patent Office has denied requests to divulge what applications
are on the SAWS list...
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