One way the patent office has addressed its massive backlog of cases has been to offer applicants opportunities to, in effect, change the positions of their cases in the patent office’s processing queue. Programs that involve moving cases up in the queue include accelerated examination, special treatment for specific technologies (such as green technology), and recently the offer to move cases onto a faster track for an extra payment of $4000. These initiatives are useful, but they are limited in scope and coarse in their way of adjusting position in the queue.
A comprehensive fine-grained approach that might work even better would be an applicant-driven dynamic queue. The idea would be to allow buying and selling of rights that could be traded for changes in queue position of an applicant’s case in a given group art unit. Let’s call these rights “queue-pons”. Each queue-pon could represent an advancing of a case, in the group art unit to which it applied, by, say, 100 places in the queue, and might have a face value of, say, $500.
A holder of a queue-pon could present it to the patent office and have it applied to a specific case of the applicant in the queue of the group art unit to which it applied. The case would then be moved ahead by 100 places in the queue. Multiple queue-pons could be presented for a single case to move the case ahead by a multiple of 100 slots.
Anyone could buy queue-pons in any number at any time for cash. Applicants could also “buy” a queue-pon from the patent office in exchange for agreeing to allow an application to be pushed back in the queue by 100 positions. This would enable an applicant to advance some of its cases and defer the prosecution of others.
Behavior of applicants in prosecuting their cases could also be rewarded or penalized using queue-pons. Instead of charging cash extension fees to an applicant who takes extensions to file a reply to an action by the patent office, the patent office could require delivery of a certain number of queue-pons. The applicant could buy the queue-pons at that time or could deliver queue-pons that it already owned.
Conversely an applicant who replied to an office action two months ahead of the due date could be issued queue-pons for doing so, which itself could tend to accelerate the prosecution of applications that applicant considered important. The possibilities are almost endless.
A private market could be set up for trading of queue-pons. The value of a queue-pon could fluctuate in the market depending on the general interest of applicants in advancing or retarding their cases.
Such a market would allow autonomous regulation of the queues in a way that would allow the patent office to automatically focus on cases that are important to the applicants and defer others, and would enable applicants to make effective choices about the speeds of prosecution of their cases, and to understand and control the costs of those choices.
Many details and some difficult issues would have to be worked out, but the potential of such a system is significant and should be considered by the patent office.