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.)