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The U.S. Government Just Eliminated Its Secret System for Stalling Patents

Alyssa Bereznak
National Correspondent, Technology
Yahoo Tech

The U.S. Patent and Trademark Office in Washington, D.C. (Photo: Alan Kotok/Flickr)

The U.S. Patent and Trademark Office (USPTO) — the government organization tasked with protecting the inventions of both major companies and individuals — has eliminated a clandestine program it used to stall certain patent applications for the past 20 years.

In a post on the USPTO’s website, the organization acknowledged that the program in question, named the Sensitive Application Warning System (SAWS), was outdated and unhelpful.

“Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit,” the post, which was published Monday night, reads. 

Part of the “minimal benefit” provided was a secretive and lengthy bureaucratic review process imposed upon independent inventors over the years, some of whom have filed legal action against the government organization for doing so.

Related: The U.S. Government Has a Secret System for Stalling Patents

As I first reported in December of last year, the SAWS program was a backdoor system that patent examiners used to postpone, for a seemingly endless amount of time, the approval of a person’s intellectual rights to an idea. Prior to our reporting, the USPTO had not publicly acknowledged the program’s existence, which meant that if you were one of the unlucky few who were placed in the system, you’d have no way to know about the delays that were coming. 

The USPTO released a report on the SAWS program in January, following a report from Yahoo Tech. About 500 applications a month were placed in the program. (Via USPTO)

It worked like this: Usually, when you submit a patent application, it requires the approval of one or two examiners who work with the office. Those applications can take anywhere from 22 to 29 months to be issued, depending on fees you pay to speed up the process or the lawyers you have representing you. 

But maybe your application meets some of the vague qualifying standards that would land a patent in the SAWS program. Though only about .04 percent of all patent applications are thrown into SAWS purgatory, those that do take twice the average time to be approved and are also twice as likely to be rejected, according to information obtained via Freedom of Information Act requests made by the law firm Kilpatrick Townsend & Stockton LLP.

So, say you’re an inventor who has founded a startup. You’re waiting for your patent to be issued, so you can start your company. In fact, some of your funding may depend solely on your ability to secure the rights to that innovation. If you were placed in the SAWS program, you could be potentially dragged along for years. Meanwhile, you might lose funding or face additional competition.

Related: New Data Shows Extent of Patent System Slowdown

The USPTO placed the SAWS program under review in January, after the existence of SAWS became public. Now it has decided to retire it altogether, decreeing that “any applications currently in this program will now proceed through prosecution absent any additional SAWS-related processing.”

"This is a good indication that they’re willing to objectively step back and look at their programs and efforts, and listen to their stakeholders," Kate Gaudry, an associate at Kilpatrick Townsend & Stockton LLP, told Yahoo Tech. "And change what needs to be changed."

However, Thomas Franklin, a partner at the same firm, says that this doesn’t necessarily guarantee improved communication between inventors and the office. 

"I’m not sure this is a win for transparency to say: you found this program so we’re shutting it down," he told Yahoo Tech.

It may all be too little and too late for individuals like Gilbert Hyatt, an established inventor who has been embroiled in a lawsuit against the patent office since 2014. He’s accused the U.S. Patent and Trademark Office of stalling on two computer-related patent applications from nearly 40 years ago — technology that he says is now entirely obsolete. 

“The patent office has a tremendous latitude in making these illegal practices, whether it’s by SAWS or other processes,” Hyatt told Yahoo Tech in January. 

A Patent Office spokesperson declined to comment on Hyatt’s case.

This article has been updated.

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