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To Spur Innovation, U.S. Incentivizes First-Time Patents

The U.S. Patent and Trademark Office launched a program in March to prioritize selected first-time patent applicants for the examination process required when applying for a patent.

(TNS) — "Patent pending" may become "patent granted" sooner for hopeful innovators throughout New Hampshire and across the country looking to file protection on their inventions with the launch of a new federal program aimed at speeding up the process.

The U.S. Patent and Trademark Office (USPTO) launched a program in March to prioritize selected first-time patent applicants for the examination process required when applying for a patent. During this time, a patent examiner with the office approves or rejects the request after carrying out a search of the USPTO's database.

Dubbed the "First-Time Filer Expedited Examination Pilot Program," the office announced that it will run the program nationwide until it has fast-tracked 1,000 inventors filing their first-ever patent or until March 11, 2024, whichever occurs first. The USPTO's website says the program aims to "increase accessibility to the patent system for inventors who are new to the patent application process, including those in historically underserved geographic and economic areas."

Three first-time filer applications have been granted expedited status under the program as of Tuesday, according to the USPTO.

Gregory Grissett, a patent attorney who lives in Peterborough and is associated with New York City-based law firm Offit Kurman, said the patent application process can be daunting, time-consuming and expensive for individuals and small businesses, even with help from practitioners like himself.

Grissett said the USPTO typically classifies applicants either as large entities: businesses with over 500 employees charged $4,800 for filing; or small entities, which are firms with less than 500 employees which have fees halved.

It's not the first time the office has opened the opportunity for quicker examination, with its Prioritized Patent Examination Program, also called Track One, for between 12,000-15,000 applications per year. However, the new program launched last month focuses on some of the smallest patent filers.

"The expedited program launched in [March] goes one step further and requires what they call 'micro entity' status to be eligible," Grissett said. "The micro entity status is really sort of an income-based determination, and so given that, the patent office is really trying to find and focus on individuals who haven't filed an application before and meet this micro entity designation."

Take the case of Griffin Dussault, an owner of Langdon construction contractor Griffin Construction who was a first-time filer.

Dussault was approved for an expedited examination process on a patent for a device he created to better insulate homes and prevent heat loss. He said it can be used in residential and commercial developments.

"There is always a spot of heat loss that was hard to overcome and there was no good detail on it," Dussault said. "One time I was building a pretty high-end house and I asked the architect what his detail on this was. He says there's no good detail. I got to thinking about it and thought I could make a piece that does this."

Dussault said he worked with a concrete contractor to flesh out the device and later, was building a home for Mary Ann Kristiansen, the director of the Hannah Grimes Center for Entrepreneurship. He said it was Kristiansen who encouraged him to take the next step in protecting his idea.

That led him to contact Grissett, who said he's worked in patent law since 2008 and has focused on a range of patents spanning from medical technology to textile materials.

Dussault said he received Track One status for his patent, which Grissett explained is a more general program not limited to first-time filers or micro entities. Grissett said the normal patent process lasts anywhere between 18 to 30 months.

But for Dussault, the Track One designation allowed him to complete the process and receive a patent in just 16 months. (He started in November 2021 and was granted his patent on Jan. 6 of this year.)

"It was 12 months before they even looked at it, so you could say it would have added another nine months to a year to the process by not doing Track One," Dussault said.

The accelerated process even included Dussault receiving a "non-final rejection" along the way, where the patent examiner denies the application but outlines requirements and objections that may allow the patent to be granted if met.

Dussault's application received a non-final rejection that noted a similar device had a patent, but in working with Grissett, he was able to distinguish his insulator as a different product to get approval.

Fine print

The process involves applying for one of several types: a utility, design or plant patent.

According to the USPTO, a utility patent is granted to an invention that the office deems "a new and useful process, machine, manufacture or composition of matter, or a new and useful improvement thereof." A design patent is granted to "new, original and ornamental design embodied in or applied to an article of manufacture." And a plant patent is specific to "new and distinct, invented or discovered asexually reproduced plants."

After an applicant files for one of the three types, the office conducts a search of patents filed throughout its database, which Grissett estimated at more than 11 million and either deem the application incomplete with a letter known as an "Office Action" or mark it complete and assign it for examination.

In that process, an examiner determines whether to approve the patent or issue a rejection, with applicants able to appeal the decision to a board if rejected twice.

The USPTO has 8,000 examiners, according to its Press Secretary Paul Fucito, who told The Sentinel the traditional wait time, or pendency, for examination averages almost 26 months.

"Historically, pendency has been measured as the average number of months from the patent application filing date to the date the application has reached final disposition (e.g. issued as a patent or abandoned)," Fucito wrote in an email.

Fucito said the waiting period includes time applicants await action by the USPTO as well as any time the office awaits reply from an applicant.

Keene's Joshua Nadeau is no stranger to waiting. He's actively going through patent examination for his invention for a method to raise an image on a poster to create a duplicate of the print. He's particularly focused on World War II propaganda posters, his collecting of which got him into printmaking.

"My most favorite posters were just way too out of my price range, so I wanted to set out to create a duplicate, not a reproduction, of them," Nadeau said. "Reproduction would be a close copy, but a duplicate is an exact copy. So instead of it looking like a reproduction, it actually looks like the original poster."

Nadeau is in the process of launching a business venture from his invention, Archival Pigment Master Printmakers. He couldn't share specific details about how his printing method works since he hasn't been granted protection, but he said it uses an ultraviolet-protective coating and increases the poster's level of detail.

"I didn't understand what I had done until I got feedback," Nadeau said. "I test marketed it through eBay, and my customers were telling me how amazed they were with it, so that's how I discovered I had something unique."

But no matter how distinct, without fast tracking the examination, it's taken Nadeau 18 months and counting to receive a decision on his style of printmaking. He said he hopes to secure a 20-year utility patent for the method.

Nadeau filed a preliminary application in August 2021, the final application in August 2022 and received a restriction on the application in December. Peterborough attorney Gregory Grissett is also serving as the patent practitioner for Nadeau's application.

"I filed under one patent for both the method and the article, and so [the USPTO] said it's actually two patents, so I had to file for one or the other," Nadeau said. "I filed for the article, which would be the print, in January 2023 and we heard back in two months."

He then received a non-final rejection he's responding to now which he said references an ink and a company with no ties or relation to his invention. He described the setback as "kind of frustrating."

If Nadeau receives approval for the article, he must file for a divisional application centered around the method of printing by one year after the grant date. A divisional application is related to the original, or parent, application and is filed to protect features included in a patented invention. It's examined separately from the parent application.

And it's been a costly system for Nadeau to navigate. The starting application cost $13,000 to file and it will cost him $3,000 to file the divisional patent. By the end of the process, if approved, he predicts he could be out $25,000 to $30,000.

"If you do the math, with $3,000 to $4,000 per response, it can add up quite quickly," Nadeau said. "Just going back and forth could cost you just as much as the original filing at that point."

Nadeau said he was unaware of the Track One program when he began filing, and he noted he began his application long before the first-time filer program for micro entities launched.

"Trust me, I know timing's everything," he said. "... In my mind, if I could have expedited it where I'm at with the cost, I would have. I didn't have to wait a year before filing my preliminary to my final patent."

Inventors can apply for the First-Time Filer Expedited Examination Pilot Program by completing Form PTO/SB/464. The form and more information on the program is available at the USPTO's website,

© 2023 The Keene Sentinel (Keene, N.H.). Distributed by Tribune Content Agency, LLC.