Secretive USPTO patent system criticised

The US Patent and Trademark Office (USPTO) has been criticised after details of a little-known system for delaying “sensitive” patent applications were revealed.

Details of the Sensitive Application Warning System (SAWS) have been revealed by a freedom of information (FOI) request obtained by law firm Kilpatrick Townsend & Stockton.

Patents that are put into this system must be approved by between three to nine people, rather than one or two, and can be delayed for years, the law firm has said.

Patent applicants are not informed when their applications are classified as SAWS, nor are the identities of the additional people involved in the decision-making process.

Previously, according to Kilpatrick Townsend associate Kate Gaudry, the SAWS programme had been mentioned “only anecdotally” by examiners or other people who work with the office.

The USPTO did not respond to FOI requests to reveal the identities of all the applications in the SAWS programme, but another response did reveal that certain categories including patents of a “sensitive nature”, such as smartphones, may be included.

In response to the FOI the USPTO said the programme is based upon a “tiered process” of identifying applications.

But Adam Charnes, partner at the Kilpatrick’s Washington, DC office, told WIPR that he was “not aware” of any agency that has “a secret component to an otherwise public process”.

“This runs against decades of administrative law principle. An agency needs to adopt substance of rules and procedures that everybody knows,” he added.

Thomas Franklin, another partner, who previously had a client seeking a patent put into the programme that has yet-to-be-issued, agreed.

The USPTO did not immediately respond to a request for comment.