USPTO's Climate Change Redux
FedInvent Reports from June 7th through June 16th
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A Deeper Look at the Climate Change Mitigation Pilot Program
Last week we wrote about the new USPTO Climate Change Mitigation Pilot Program announced on June 3, 2022. We've had some time to look deeper into the program and its rules.
First, a recap on how the program works. Start with a Petition to Make Special — PTO/SB/457, Petition for Climate Change Mitigation Pilot.
Petition to Make Special
USPTO plans to accept Petitions to Make Special beginning June 3, 2022, until either June 5, 2023 or the date the USPTO accepts a total of 1,000 grantable petitions,
If you aren't a member of the patent tribe and don't know what a Petition to Make Special is, here is how it works. Patent applications are strictly a first-come, first-served affair. Patent applications are not supposed to advance out of order, at least in theory. Other considerations drive the flow of patent applications to examiners — the art covered in the application, the backlog, and TrackOne accelerated examination applications — but the dockets get built with the goal of patent applications not advancing out of order. Petitions to Make Special are the tool USPTO uses to move patent applications to the front of the line when there is a compelling reason to do so.
There are several situations where an inventor can ask USPTO to move their applications to the top of the docket. Petitions to Make Special are available to inventors to advance applications out of order based on the inventor's age (over 65) or health; or an application that will
Enhance the quality of the environment;
Contribute to the development or conservation of energy resources; or
Contribute to countering terrorism. Applications where the inventions are deemed of peculiar importance to a branch of the public service and the head of a department of the Government requests immediate action for that reason may be advanced for examination.
The Climate Change Mitigation Pilot Program is how USPTO will help address the Biden Administration's climate change agenda. Moving climate-related inventions to the front of the patent examination docket is a big deal. It accelerates both decision-making on the patent but also of commercializing the technology. Inventors know sooner if their invention is protected. An invention is good. An invention with a patent is a win in the funding and commercialization game.
The petition for the program has rules. The patent has to meet the technical criteria and several administrative rules. To advance an application to the front of the line, the application can only have 20 claims, three independent and 17 dependent claims, or any mix that adds up to 20 claims. The inventor has to file electronically. You also have to use the very unpopular DOCX format.
Inventors can only have four applications move to the front-of-the-line queue. This is an improvement over the Obama Era Green Technology Pilot Program, where there was no rule. Intellectual property behemoths that dominated that program — General Electric and Ford — received 167 and 81 patents, respectively.
This time around, USPTO has eliminated the creative writing aspect of the applications. The claims need to cover the climate change mitigation aspect of the invention. No writing about how having a curved door for a wind turbine or a new bolt will help improve the wind turbine maintenance experience in the Summary of the Invention. Hopefully, there will be fewer doors and bolts this time around.
Applications entering the program need to be ready for examination—a major improvement over the last time around. The last time an inventor could throw something in that sounded "green", move to the top of the docket, and then the examiner had to deal with a long list of administrative fixes before examining the application on the merits.
What Inventions Qualify For the Program
The inventions in the applications for the program need to meet the criteria for inventions placed in the Y02 CPC symbols USPTO defined for the program.
This time, the USPTO Climate Change Mitigation program requires that claim(s) in the application cover(s) a product or process that mitigates climate change. The claim(s) needs to correspond(s) to one or more of the technical concepts within the following Y subclasses in the Cooperative Patent Classification (CPC):
Y02A — Technology for Adapting to Climate Change;
Y02B — Climate Change Mitigation Technologies Related to Buildings;
Y02C — Capture, Storage, Sequestration, or Disposal of Greenhouse Gases (GHG);
Y02D — Climate Change Mitigation Technologies in Technology and Communications Technologies Aiming at the Reduction of their Own Energy Use;
Y02E — Reduction of Greenhouse Gas (GHG) Emissions Related to Energy Generation, Transmission, or Distribution;
Y02P — Climate Change Mitigation Technologies in the Production or Processing of Goods;
Y02T — Climate Change Mitigation Technologies Related to Transportation; or,
Y02W — Climate Change Mitigation Technologies Related to Wastewater Treatment or Waste Management.
What We Found
If you are a regular reader of the FedInvent newsletter, you know that the FedInvent Reports have an Emerging Technology section that reports on taxpayer-funded patents that contain Y CPC symbols. We publish the patent or apps with Ys in that section, but each week we find
other patents in the mix with inventions that were beneficial in mitigating climate change — our "Should Be a Y List" — but weren't in USPTO's Y collection. We've been perplexed about what winds up with a Y CPC and what doesn't since we started the FedInvent project. Some solar patents were on the Y list. Others were not. The inventions were similar. We couldn't figure it out, so we tagged them as "Should Be a Y list."
We thought we'd highlight some of these "Should Be a Y" vs. have a Y for this week's newsletter. So we dug up a few exemplars. We looked at the patents again. Our "Should Be a Y" list had Y CPCs. What is going on now? Did we miss these patents? So we checked the patents' PDF images to see what the original classifications were. Most of the patents on the "Should Be a Y" list now have Y CPCs.
It turns out that USPTO has reclassified the full-text patents adding Y CPCs. We found over 400,000 patents that now have Y CPC symbols assigned. USPTO the patents cover USPTO's entire portfolio of full-text patents going back to 1976. The prior art police.
USPTO's reclassification effort appears to have been a primarily digital exercise. It doesn't look like this is a human reclassification exercise. (How else do you add new classification data to 400,000+ patents without busting the budget?)
Not having a complete portfolio of patents classified as climate change mitigation-related while using the Y CPCs as criteria for inclusion in their new program would be problematic. Inventors and examiners would waste a lot of time trying to understand why some lithium-ion battery patents had a Y and others didn't. We know we wasted a lot of brain cycles trying to figure it out. So it was wise to go through this exercise before announcing the program.
The Assignment of Y CPC Symbols Is Still Tricky
The Y02A symbols used for inventions for adapting to climate change include inventions for the treatment of infections and infectious diseases that may be exacerbated by climate change and other vector-borne illnesses. The taxpayer-funded patents include treatments for viruses and other diseases exacerbated by global warming — Dengue, Malaria, Zika, and other virus-related pharmaceuticals for the treatment of other viruses, including human papillomavirus (HPV) a virus that can cause cancer.
You have to dig into the claims to figure out what triggered the assignment at the Y. US patent 11,332,783 from the CRISPR, and genetic engineering powerhouse Broad Institute is an instructive example. The patent reads like a genetic engineering patent until you hit claim 18. Claim 18 is a 701-word claim that covers using the invention to sequence an encyclopedic list of viruses. Many of these viruses are exacerbated by warmer weather. New treatments are needed to help mitigate the impact of climate change.
Y02D is where inventions to improve energy consumption in blockchain mining and reduce the carbon footprint of data centers and high-performance computing systems are likely to show up. Y02D is also where improvements in power management and heat dispersion inventions for information technology are likely to appear. What is classified here, however, is opaque.
Patents with Y02E CPC symbols cover inventions focused on the Reduction of Greenhouse Gas (GHG) Emissions Related to Energy Generation, Transmission, or Distribution. This symbol is where you'll find solar panels, battery technology, and a patent for an electric bus funded by the National Fuel Cell Bus program at the Federal Transit Administration (FTA). Many of the new classifications on the FedInvent patents tagged as "Should Be a Y" are now classified with Y02E symbols.
USPTO didn't include inventions placed in the Y04 symbol. The Y04 symbols are focused on enabling technologies, the information and communications inventions that facilitate climate change technology. This is a baffling decision. Many of the most critical climate change mitigation products and processes need infrastructure — technologies related to smart grids, improvements to the grid, and home appliances metering. The transition to electric vehicles (EVs) requires systems supporting the interoperability of electric or hybrid vehicles and technologies related to power network operation, communication, or information technologies to improve electrical power generation, transmission, distribution, management, or usage. There is also a need for enabling tools to provide better data on battery health, billing for charging, and solar energy production.
The last time around, USPTO's green technology effort used a group of US Patent Classifications (USPCs) as criteria to be included in the program. The inventors and the examiners were better able to define what green technology was than a list of patent classifications. Halfway through the program, the Office removed the requirement.
What Is Past is Prologue
USPTO has tried this before. The impact of the Obama Era program on mitigating climate change is unclear. General Electric remains one of the top providers of wind turbines. The Ford F-150 is the top-selling vehicle in America, with a new electric version on the way. Millions of dollars in loans to commercialize the solar inventions under the older program didn't change market dynamics for solar panels. China remains the top provider of solar panels even as US solar panel manufacturing capacity grows. There continues to be a significant taxpayer-funded investment in climate change R&D.
The link that follows is a look at the outcomes of the Obama Era Green Technology Pilot Program. We look forward to seeing the outcome of the program this time around.
USPTO's Climate Change Mitigation Pilot program counter hasn't changed since the program was announced. It's still sitting at 0 petitions files and 0 granted. So the clock is ticking, inventors.
About The Deep Dive Image
The Deep Diver is from US Patent 1370316 invented by Harry Houdini on March 1, 1921. The legend is that Mr. Houdini invented the suit to support Navy divers.
Data Snacks Before We Go
So far this year, 3,211 patents and 4,028 patent applications received taxpayer funding, about 2% of all of the patents granted and applications published by the USPTO.
So far this year, Higher Education Research and Development entities (the HERD) received 1,834 patents and are applicants on 2,595 published patent applications. The HERD is an assignee or applicant on 57% of the patents and 64% of the published applications.
In 2021, IBM, the top recipient of US patents for the last 29 years, received 8,540 patents. USPTO granted 7,722 patents that received taxpayer funding. This count would place taxpayer-funded as the number three recipient of US patents. IBM received 138 patents with government interest statements. Raytheon Technologies Corporation, the ninth highest recipient of US patents, received 2,694 patents. One hundred seventy (170) of those patents had taxpayer funding.
Thanks for reading FedInvent.
The FedInvent Team
FedInvent tells the stories of inventors, investigators, and innovators. Wayfinder Digital's FedInvent Project follows the federal innovation ecosphere, taxpayer money, and the inventions it pays for. FedInvent is a work in progress. Please reach out if you have questions or suggestions. You can reach us at firstname.lastname@example.org.
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