Faster Clean Tech
The USPTO launched its “Green Technology Pilot Program” on December 9, 2009 to accelerate the examination of certain “green” technology patent applications. Program goals included accelerating development and deployment of green technology, creating green jobs, and promoting U.S. competitiveness in this technology arena. Applications meeting program requirements received expedited examination, which according to USPTO would reduce the average pendency of those applications by about a year. USPTO’s press release announcing the program stated that
“[t]he average pendency time for applications in green technology areas is approximately 30 months to a first office action and 40 months to a final decision. Under the pilot program, for the first 3,000 applications related to green technologies in which a proper petition is filed, the agency will examine the applications on an accelerated basis.”
The patent office ultimately accepted 3,520 applications through the program close in mid-February 2012.
Way Better Patents conducted an initial review and analysis of program results using the 836 patents issued from the program through its closing. Other Way Better clean tech resources can be found here.
December 11, 2014 marked the fifth anniversary of the beginning of this targeted program. This article begins a new series that will provide an in-depth review of the results of selectively granting accelerated examination in a technology area. We will use Way Better Patents’ patentECO™ Indexes to organize upcoming articles, provide key metrics on program output, introduce you to the top inventors receiving patents under the program, and highlight some of the more interesting and innovative inventions protected by these property rights grants.
The Program @ 5 – Energy the Clear Winner
USPTO granted 2,459 patents from the Green Tech Pilot Program through December 11, 2014. As we noted in earlier reports, articles, and presentations, program grants are very strongly skewed toward inventions in the patentECO™ Energy Index. The table shows the breakdown of grants by number of patents in each Index and their percentage of the total number of patents issued by the program.
|Index||Count||% of Total|
|Resource Extraction & Harvesting||4||0.2|
Seventy percent (70%) of the accepted applications have now issued as patents. Two-thirds of those grants have been in the Energy Index, and very small percentages are found in the Air, Water, Agriculture, Resource Extraction & Harvesting indexes. The preponderance of energy inventions is perhaps not surprising, but the very low innovation rate in these latter four areas via the program is puzzling. We note, however, that USPTO’s initial program eligibility requirements included a list of very specific technology areas that would be accepted into the program. This requirement was later dropped, but may have had an inordinate influence on decisions by inventors and their patent attorneys or agents whether or not to submit a petition to make their application special; i.e., accept the application into the accelerated examination program, thereby moving the application in front of (“making special”) others in the examiners’ dockets. Certainly, the acceptable technologies list provided by USPTO is a very limited sample of all the technologies that can be considered clean tech. We have an expansive view of clean tech, and consider it to include technologies that
use less material, less energy, minimize waste, or lessen negative environmental consequences.
Faster to Market?
USPTO expected the accelerated examinations provided by the program would reduce overall pendency (number of months from application filing to patent grant) from about 40 months for “green” technologies (green is quoted here to emphasize the limited universe of actual clean tech that USPTO considered acceptable) to about 28 months – a 12-month acceleration.
|Index||Mean Pendency (months)|
|Resource Extraction & Harvesting||20.3|
For patents issued through the 5-year mark, overall pendency across all Indexes averages 24.8 months, with individual Indexes ranging from a high of 26 months (Air) to a low of 19.5 months (Water). For this aspect of USPTO’s program goals, overall pendency comes in 11 percent under the target value (24.8 months v. 28 months).
Very few independent inventors. Large companies did very well.
Using the assignment data on the patents as issued, the percentage of patents with one or more independent inventors who retained ownership at issue is listed in the table, in decreasing order.
|Resource Extraction & Harvesting||1||3||4||25.0|
Resource Extraction & Harvesting, Water, and Agriculture inventions have the highest proportions of independent inventors, ranging from 20.0 – 25.0 percent. The other Indexes had between 6.0 and 10.5 percent patents with independent inventors.
It is instructive to break these data down by patentECO™ Index/Category; we list the top one (in cases where there is only one Index/Category with independent inventors) or two Categories for each Index.
|Total for all Index/Category combinations||167||2292||2459||6.8|
Within the body of 2,459 patents issued from the Green Tech Pilot Program through its fifth anniversary, fertilizer alternative (Agriculture), trading & offsets and emissions controls (Air), hydroelectric and wave (Energy), green building and production (Industry), aquatic (Resource Harvesting), energy efficiency and marine (Transportation), and wastewater treatment (Water) are the areas in which independent inventors are most prolific.
What about the flip side — in what areas are independent inventors least likely to be found within this admittedly limited sample of clean tech inventions? Put another way, where is organizational sponsorship of invention most prevalent? The table lists the top two Index/Categories with the least prevalence of independent inventors.
|Air||Carbon capture or sequestration||8||8||0.0|
|Resource Extraction & Harvesting||Wells||3||3||0.0|
|Transportation||Internal combustion engine||7||194||201||3.5|
With the exception of Transportation, each Index has at least one category in which no patents have independent inventors.
If organizations’ sponsorship of clean tech innovation, as captured by USPTO’s program, is so prevalent, who are the major players? The next table lists the top three organizations by patentECO™ Index. The number in parentheses following the Index name is the total number of patents issued through December 11, 2014 in that Index. Within the table cells, the number preceding the slash is the number of patents issued to the organization; the percentage following is the percentage those patents represent within the Index/Category.
|Assignee||Agriculture (5)||Air (57)||Energy (1665)||Industry (378)||Resource Extraction|
|& Harvesting (4)||Transportation (318)||Water (44)|
|Conco Technology, Inc.||1 / 20%|
|Hector Luis Correa Delgado||1 / 20%|
|MPT Mustard Products|
|& Technologies Inc.||1 / 20%|
|Pearl’s Premium, Inc.||1 / 20%|
|Purfresh, Inc.||1 / 20%|
|Johnson Matthey||8 / 14.0%|
|Membrane Technology and Research, Inc.||8 / 14.0%|
|Calera Corporation||4 / 7%|
|BASF Corporation||3 / 5.3%|
|Expansion Energy, LLC||3 / 5.3%|
|General Electric Co.||398 / 23.9%|
|LG||149 / 8.9%|
|Mitsubishi Heavy Industries, Ltd.||67 / 4%|
|General Electric Co.||29 / 7.7%|
|Genomatica, Inc.||20 / 5.3%|
|Gevo, Inc.||14 / 3.7%|
|Anti-Pollution Technology, L.P.||1 / 25%|
|Expansion Energy, LLC||1 / 25%|
|Stewart Hardison||1 / 25%|
|University of Utah Research Foundation||1 / 25%|
|Ford Motor Co.||201 / 63.2%|
|General Electric Co.||11 / 3.5%|
|O2 Micro||9 / 2.8%|
|King Abdulaziz City for Science and Technology||4 / 9.1%|
|Crystal Lagoons Curacao B.V.||3 / 6.8%|
|Ecosphere Technologies, Inc.||2 / 4.5%|
|EnerTech Environmental, Inc.||2 / 4.5%|
|Heliae, Inc.||2 / 4.5%|
|King Fahd University of Petroleum|
|& Minerals||2 / 4.5%|
|NCH Ecoservices, LLC||2 / 4.5%|
|Saltworks Technologies Inc.||2 / 4.5%|
The top three organizations receiving patents via the Green Tech Pilot Program, across all patentECO™ Indexes are the General Electric Company (438 grants; 17.7% of all grants), Ford Motor Company (239 grants; 9.7% of all grants), and LG (149 grants; 6% of all grants). The top 10 organizations receiving patents thus far were awarded 1,106 grants, 45% of all patents issued. The program is highly skewed toward awarding patents to large companies.
Some Concluding Thoughts
Several aspects of this pilot program are fascinating from the perspectives of public policy and the nature of the relationship between large corporations and US federal agencies.
- From a technology innovation standpoint, why have only 2.6% of the patents issued from the program fallen within the Air, Water, Agriculture, or Resource Harvesting Indexes? Were innovators in these fields unaware of the opportunity for accelerated examination? Is there relatively little to no innovation underway in those fields (obviously, the answer is “No.”)? Were internal decisions and processes within the USPTO determinant in eliminating applications in these technologies from consideration? Unfortunately, there is no efficient way of knowing the total pool of applications that requested acceptance into the program; we only know those that were accepted.
- There are troubling questions regarding General Electric’s participation in the program, starting with its knowledge of the program prior to its announcement (see the USPTO’s initial program press release). Its position as the leading company benefactor of program grants, the 11.8% benefit its patent pool pendency has received thus far in comparison to the average pendency of all other program participants, and its public lobbying of USPTO examiners and managers for FRAND status of its wind energy technology at one of the Office’s “Green Tech Partnership” public meetings.
- USPTO, in its initial compilation of what it considered “acceptable” clean technology for accelerated examination (see earlier link), took a highly limited view of the clean tech universe. Although the Office later eliminated this requirement, it suggests that any future technology-oriented special programs it undertakes would benefit from extensive and real interaction with the IP community at large in defining acceptable program limits.
- We question whether the loss of waived fees incurred by the program was justified, given that a high percentage of these patent applications would have been submitted by their corporate and academic sponsors whether this special program existed or not. Rather than targeting a specific technological area for accelerated examination, the benefit of reducing pendency across all technologies would provide a greater good to innovators.
- USPTO’s reporting on the program was and remains virtually non-existent. To the best of our knowledge, Way Better Patents has the most in-depth discovery and analysis of this program to be found anywhere. The public, and the IP community in particular, deserve a more transparent and robust accounting and reporting process than the little that USPTO provided for this program. And what of the inventors whose innovations were not moved to the front of the examination line as a result of approved petitions “to make special” – the golden key to entering the program? We have continued to track innovations in the same technological spaces as those patented by this program, but were not part of the program. We’ll have more to present on those at a later date.
- Finally, we don’t believe that government agencies, in this case the USPTO, should be in the business of choosing winners and losers in any arena, and technologies that might warrant patent protection are at the top of the list. Although perhaps well-meaning (and we reserve judgement and remain skeptics on that), government employees simply are not in a position or equipped to provide more accurate assessments of the potential future value of technological innovation than can be provided by a market-based system of capitalism and competition.
Check back for the upcoming posts on more detailed aspects of the USPTO “Green Technology Pilot Program” at five years.