‘Undeserved’ patents bigger issue for industry than ‘fast track’ postponement

By Stephen Daniells

- Last updated on GMT

Related tags: Natural products, United states patent and trademark office, Patent

Not so fast...
Not so fast...
The indefinite postponement of the proposed Track One prioritized patent examination program will not affect the natural products industry very much, and pales in comparison to the problem of undeserved patents, says a leading industry figure.

The US Patent and Trademark Office recently announced that budget cuts were behind its decision to postpone ‘Track One’ – part of a three track program to boost efficiency in the patent examination process and provide applicants with greater control over when their applications were examined.

For an extra fee, the accelerated system would have given inventors and business a response to their application within 12 months.

An industry insider told NutraIngredients-USA.com that the accelerated exam process wouldn’t do very much anyway. “We can still claim priority on time through the provisional patent process,”​ said the source.

Patent protection?

“The biggest issue in our industry is the large numbers of patents issued on natural products that don’t deserve to be issued,”​ the source added.

“Most of the time the reason is prior commercialization. Patent examiners don’t have easy access to catalogs and sales and marketing literature of products. Many patentees are either not aware or try to hide commercial products from the examiner, so their patents are issued.

The insider said that the cost to invalidate a patent can run in the millions, giving the patent holder an unfair advantage for natural products.

“In the last few years, many patent holders, under the guise of wanting to protect their patents, with the intent to extract money from manufacturers, have been suing companies for infringement.”

“It’s easier and much cheaper for companies to settle than to seek to invalidate the patent because of the huge costs involved that can’t be supported by sales of natural products.”

Fast track to nowhere

Track One was heralded by some as a much needed upgrade to the current patent process. Budgetary cuts have now turned that avenue into a blind alley. According to a notice published in the Federal Register​ on April 29, “With the current level of resources, the Office will not be able to meet the twelve-month pendency goal in prioritized examination applications without impacting the non-prioritized examination applications at this time.

“Therefore, the Office is delaying the effective date and applicability date of the Track I final rule until further notice.

“When the funding limitations are resolved, the Office will issue a subsequent notice identifying a revised effective date and applicability date on which the final rule shall apply.”

Too long

News of the postponement was lamented by Tom Morse, co-founder of Carogac, who noted that currently the process for trademarks takes 13-18 month, and that is the “best case scenario”.

“This is very slow and creates tremendous issues for growing new brands. As well, common law rights to names and marks further complicates a rather simple task to register and protect a mark.

“With all our technology, the millions of dollars the USPTO has and the USA supposedly being a technology leader, the process to register and protect a name should not take 13-18 months best case,”​ added Morse.

“In Michigan, a name can be searched and registered in 15-20 minutes.”

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