The PTO announced a pilot program to allow small entities with two or more patent applications to move to the front of the review line by dropping an existing patent application. As a rule of thumb, a small entity is a business with fewer than five hundred employees. The theory is that a small entity may change its priorities between the time that a patent application is filed and the time that the application is reviewed. The application may no longer be of value to the small entity. Currently, the small entity has no incentive to abandon a patent application in which it is no longer interested and the PTO is required to expend resources to review the valueless application. The small entity will not respond to the resulting office action and the application will go abandoned.
It is not clear why the program does not extend to large entities, which have many more pending patent applications than small entities. One possibility is that large entities could game the system because they have so many pending applications and might float more applications just so that the additional application could be abandoned. We do not expect that this program will do much to reduce PTO’s backlog and we do not expect that it will be frequently used.
–Robert J. Yarbrough, Esq.