On December 8th, the Patent Office implemented a pilot program in which an applicant may have an unexamined application filed before December 8, 2009 made special upon a showing that the putative patent would “materially enhance the quality of the environment by contributing to the restoration or maintenance of the basic life sustaining natural elements.” 74 Fed. Reg. 64666 (Dec. 8, 2009) (a copy is attached at the end of this posting). The petition to make special must state the basis for the special status, but there are a lot of them. The notice lists them by classification, and they fall broadly into alternative energy production, energy conservation, environmentally friendly farming (including all of “plants and plant breeding ” – 800 (!)) and environmental purification, protection or remediation. The subclasses cover everything from swimming pool heating to wind-powered ships. Of course, biotech faves like “biofuel,” “toxic material clean-up,” and “recycling” are included, as well as “using microbes and enzymes [to destroy toxic materials], and “genetically engineered organism” [to produce fuel, I assume]. Somewhat more exotic ones include “emission trading” (a business method?), “drag reduction,” and nuclear power. One area I have worked in but couldn’t quite find was “herbicide alternative” or some such, although “fertilizer alternative” is present. Maybe this would fall within “yield enhancement” but so would quite controversial inventions like Bt corn or glyphosate-resistant soybeans.

Of course there are lots of strings attached. The program has a limit of 3000 petitions, which must be filed before December 8, 2010. The claims must be directed to a single invention and there can only be three independent and twenty total claims (shades of the recently departed rule package?). Both this Green Pilot program and the Abandon to Advance Pilot Program at least exhibit a startling level of creativity for an Office not known for that trait, but I worry that the resources may not be there to expeditiously process all these petitions. If you try it (and I intend to), please let me know if you like it!

74 FR 64666.pdf