The Deputy Commissioner for Patent Examination Policy, Mr. John J. Love, has issued a memorandum to the USPTO Technology Center Directors in an effort to clarify processes under 35 USC § 101. In the memorandum, dated May 15, 2008, Mr. Love provided a two-step process for determining patent eligibility of process claims under 35 USC § 101.
The USPTO has initiated a pilot program, known formally as First-Action Interview Pilot Program, which would allow patent applicants to receive prior art search results and resolve patentability issues in real time with the examiner prior to issuance of a first Office action on the merits. Here is how the program works:
It is no great secret in the patent community that individuals who file and prosecute patent applications in the United States Patent and Trademark Office (USPTO) have a duty to disclose to the Office all known information material to patentability of the application. It is also no great secret that failure to disclose such information during prosecution of the application may render the resulting patent unenforceable, even if the concealed information does not ultimately render the patent invalid. But what if what is considered as "all known information material to patentability" continues to be redefined in the Court with retroactive effects?
Getting a patent application from filing to allowance in the USPTO these days can feel like undergoing a root canal without anesthesia. This is not entirely surprising since one of the performance measures of the USPTO is patent allowance rate: the lower the patent allowance rate, the better the system performance. In “Fiscal Year 2006: A Record-Breaking Year of the USPTO Patent,” the USPTO boasted that it achieved the lowest patent allowance rate on record in 2006 at 54%, which means that 46% of the applications examined in 2006 were not found to be in condition for allowance. In real numbers, the number of applications that were examined but not allowed in 2006 was 152,720.