USPTO Considers Deferred Examination Procedure

Faced with a backlog of over 770,000 patent applications, the United States Patent and Trademark Office (USPTO) is considering a deferred examination procedure. Under the procedure, U.S. patent applicants would have to affirmatively request examination. Absent a request, examination would be automatically deferred, as is the case in many foreign patent offices.

On February 12, 2009, the USPTO hosted a roundtable discussion on deferred examination, attended by representatives of IBM, Microsoft, American Intellectual Property Law Association, Intellectual Property Owners Association, the American Bar Association, and other organizations. An advantage would be that patent applications of lower interest to the applicants would move out of the examination queue, making way for more timely examination of applications of greater interest. A disadvantage would be decreased certainty for competitors -- patent applications could sit in the Patent Office unexamined for years -- and a corollary potential for abuse.