It's been a slow start for the U.S. Patent and Trademark Office's (USPTO) pilot program to fast-track the evaluation of patent applications for so-called green technology, with the agency approving about one third of the requests it has received. Only 316 of the 925 applications filed under the agency's Green Technology Pilot Program launched in December have qualified to jump to the front of the patent-examination line. This has led to mixed reviews from tech companies and even the patent office itself.

The program's acceptance rate is "less than I would have expected," says Bob Stoll, the agency's commissioner for patents. Forty-one requests have been denied outright whereas another 488 requests have been dismissed (80 are still awaiting a decision). Applicants have been "aggressive" in their hopes of taking advantage of the patent-evaluation fast-track program without necessarily meeting the program's requirements, he adds.

The USPTO defined these requirements in the December 8, 2009, Federal Register [pdf], in which the agency stated it is looking for inventions that fit into a number of broad buckets—addressing environmental quality, energy conservation, development of renewable energy and greenhouse gas emission reduction.

In addition to these broad categories, the Register lists 79 very specific classifications for the program, stating: "In order to be eligible for the Green Technology Pilot Program, the application must be classified in one of the U.S. patent classifications ("USPCs") listed below at the time of examination." These classifications cover a large swath of technologies designed to help wean the U.S. off its dependence on fossil fuels for energy, including biofuel, fuel cells and solar cells. Stoll acknowledges, however, that if the office is approving only one-third of applications, "maybe we need to eliminate the class and subclass designations to open up the definition for green tech."

Defining green technology
Although the USPTO has more or less defined what green technology does, it is much harder to define what constitutes a patentable invention in this area. Most of the technology being developed to improve (or at least not harm) the environment is little more than an incremental change in devices already in use, says Eric Raciti, a partner at the Cambridge, Mass., law firm Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. Whereas anything that creates energy and reduces reliance on fossil fuels could be considered green, the actual technology that does this often draws on an interdisciplinary set of components from other areas, adds Raciti, who worked for five years at the USPTO as a patent examiner in the medical device arts.

The program to fast-track green patents "won't have a big impact" on the development of green technology because so many of these technologies have already been patented, agrees Mark Bünger, a research director at Lux Research Inc. "I wouldn't oversell the importance of the green patent fast track." The technologies that companies are trying to patent as green are typically only a small part of a larger process or project that may cut fossil fuel consumption or otherwise help the environment, he says, adding, "there will never be something like a killer app in clean technology" that stands completely on its own.

Investment incentive
Others believe the USPTO's program could turn out to be very valuable, particularly for startup companies. Patent examiners normally evaluate patent applications in the order they are filed, a process that takes as long as 40 months before a final decision is rendered on their validity. The pilot program promises to shave about a year off of that time frame for the first 3,000 eligible applications.

The problem with a young company is that because it takes so long for a patentable technology to be recognized, usually "you're already down the road before you have that protection, if you even get that protection at all," says Tim Keating, vice president of marketing at Skyline Solar, a maker of high-gain solar arrays. "To a new industry, removing that uncertainty is extremely valuable. For a young company to have a beachhead of patents is of paramount importance."

Although Skyline Solar's technology is constructed of solar cells, panels and reflectors made by other companies, Skyline holds five patents for its manufacturing technology and processes and its system for cooling the solar cells, among others, Keating says. "The ability to say that we're fast-tracked means that something is interesting here," he says. "That certainly makes investors more comfortable, which means you get your money for a cheaper price and you spend less of your time raising that money."

In the end, the USPTO will measure the pilot program's success in a number of ways, Stoll says. These include how enthusiastic inventors are about using that program (the number of applications would be a strong indicator), how well inventors adhere to the program's predefined categories (filing legitimate green-tech applications) and the public's perception of the program. "I read the blogs everyday," Stoll says.