January 31, 2023

Volume XIII, Number 31

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January 30, 2023

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US Patent Office Seeks to Positively Impact Climate by Accelerating Examination

The Biden Administration is using a comprehensive set of tools to stick closely to campaign promises around — and the public demand for — climate action.

Recently, the US Patent and Trademark Office (USPTO) announced changes to the patent application process through a new program called the Climate Change Mitigation Pilot Program. The program prioritizes the examination of patent applications claiming products or processes that reduce greenhouse gas emissions. This accelerated examination process will last until June 5, 2023, or until the USPTO receives 1000 applications, whichever comes first.[1]

Requirements

To qualify, prospective applicants must meet the following criteria:

  • File a non-continuing original utility nonprovisional application, national stage application, or nonprovisional application that claims the benefit of only one prior application that is either a nonprovisional application or an international application designating the United States;

  • The application must have at least one claim to a product or process that reduces greenhouse emissions;

  • File a Petition to Make Special using Form PTO/SB/457 at the time of, or within 30 days of, filing the application;

  • File the application electronically in DOCX format.[2]

Qualifying applications are advanced out of turn for examination (i.e., granted special status) until a first action on the merits is complete. Thereafter, the application will be placed on the patent examiner’s regular docket.

Emission Reduction Claims and Categories

Making a claim to a greenhouse-reducing product or process includes selected activities in the Y02 subclass in the Cooperative Patent Classification System (CPC). Under the program, applications for innovations of the following climate change mitigation technologies will be considered:[3]

  • Y02A – technologies for adapting to the adverse effects of climate change;

  • Y02B – technologies related to buildings, appliances, or related end-user applications;[4]

  • Y02C – capture, storage, and sequestration technologies;[5]

  • Y02D – information and communication technologies aiming at the reduction of their own energy use;

  • Y02E – reduction of greenhouse gas emissions related to energy generation, transmission, or distribution;

  • Y02P – technologies in any kind of industrial processing or production;

  • Y02T – technologies related to transportation; or

  • Y02W – technologies related to wastewater treatment or management.

Applicants must certify that they have a “good faith belief” that the accelerated review of their application will positively impact climate change.

Takeaway

Patent applicants that claim a product or process that reduces greenhouse emissions can avail themselves of the USPTO’s Climate Change Mitigation Pilot Program, and receive accelerated examination. Such expedited review can be highly advantageous for start-up, mid-sized and large companies trying to get their climate change mitigation technologies to market.


FOOTNOTES

[1] As of November 1, 2022, at least 147 applications have been filed and 83 have been granted special status.

[2] An Applicant may not file a petition to participate in this pilot program if the inventor or any joint inventor has been named as the inventor or a joint inventor on more than four other nonprovisional applications in which a petition to make special under the Program has been filed. Moreover, the application may not be filed with a nonpublication request or the Applicant must rescind a previously-filed nonpublication request on or before requesting accelerated review under the Program.

[3] The full schedule of the Y02 class is available here.

[4] Category Y02B is particularly prescient in the wake of the Inflation Reduction Act (IRA). The IRA offers tax credit production incentives (Advanced Manufacturing Production Tax Credits or PTCs) for producers of wind and solar energy components and inverters in addition to investment incentives (Clean Energy Investment Credits or ITCs) at the utility-scale and household levels for energy production, storage, and high-efficiency electric appliance upgrades. See here

[5] This category has increased significance given the sequestration and direct capture technology competitions funded by the appropriations in the IRA. The IRA extends the available Section 45Q tax credit to any carbon capture, direct air capture, or carbon utilization project that begins construction before January 1, 2033, but more importantly, increases the value of those credits. See here.  

© 2023 ArentFox Schiff LLPNational Law Review, Volume XII, Number 314
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About this Author

Karen Ellis Carr Attorney Food and Agriculture Arent Fox Schiff Washington DC
Partner

Karen has experience in litigation and regulatory counseling, strategy, and advocacy, with a primary focus on products regulated by the United States Department of Agriculture (USDA), Environmental Protection Agency (EPA), and Food and Drug Administration (FDA). Karen advises on pathways to commercialization for new products and technologies, advertising and labeling, testing and reporting, data use and compensation disputes, and litigation relating to product approvals. Karen has specific expertise with the Plant Protection Act, the National Bioengineered Food...

202-715-8531
Alexander H. Spiegler New York Patent Attorney ArentFox Schiff
Partner

Alex Spiegler is a registered patent attorney whose practice focuses on all aspects of patent law, with an emphasis on the agricultural and life sciences industries. Alex co-leads ArentFox Schiff's AgTech industry group and its Trade Secrets group.

Alex has extensive experience with the US Patent & Trademark Office, specializing in patent prosecution and post-grant proceedings, in a wide variety of technologies, including biotechnology, pharmaceuticals, and agricultural technology. Alex also provides advice on claim construction,...

212-457-5454
Patrice Howard Ph.D Asscoiate ArentFox Schiff LLP
Associate

Dr. Patrice Howard works across the Government Contracts, Government Relations, International Trade, and Real Estate practice groups. She holds a Ph.D. in comparative politics from Columbia University and a law degree from Georgetown University.

Patrice leverages her wide-ranging experience with federal government and international development grant programs at the Department of Justice, the United States Agency for International Development, the World Bank, and various national and international organizations to apprise clients on agency...

202-857-6068
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