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Life Sciences Litigation Update - October 2022

October 17, 2022
Business Litigation Reports

USPTO Climate Change Mitigation Pilot Program

Mitigating climate change has become a key issue in many areas of the law. See Carbon Offsets: A Coming Wave of Litigation?. The United States Patent Office (“USPTO”) is the most recent government agency to create incentives for companies to make this issue a priority. Specifically, the USPTO recently implemented a Climate Change Mitigation Pilot Program to expedite the examination of patent applications for inventions that mitigate climate change and reduce greenhouse gas emissions. See Climate Change Mitigation Pilot Program, 87 Fed. Reg. 33750 (June 3, 2022); see also Climate Change Mitigation Pilot Program (USPTO notice). The program aligns with Executive Order 14008, dated January 27, 2021, and is part of the USPTO’s ongoing efforts to incentivize innovations in key technology areas such as climate change mitigation and greenhouse gas reduction. The program is intended to encourage research, development, and innovation in the climate space and provide intellectual property protection to incentivize investment and maximize the impact of those innovations.

Under the pilot program, qualified patent applications involving greenhouse gas reduction technologies are advanced out of turn (i.e. accorded special status) for examination until a first office action on the merits is complete. After the first action on the merits, the application will no longer be treated as special if further examination is required. At the USPTO, new patent applications are taken up for examination in the order of their filing date, and the first office action on the merits typically takes more than a year or longer. The USPTO has procedures under which an application can be advanced out of turn for examination, if the applicant files (1) a petition to make special; or (2) a request for prioritized examination. Under the Climate Change Mitigation Pilot Program, an application that claims certain products or processes that mitigate climate change by reducing greenhouse gas emissions may be advanced out of turn for first office action on the merits without meeting all of the requirements of existing accelerated or prioritized examination programs (for example, without the filing of examination support documents or the payment of extra fees).

To quality under the new pilot program, a patent applicant with a pending application must file “a petition to make special” for that application, and there is no fee required for filing such a petition. Key requirements to participate in the pilot program include:

  • The application must be either a non-continuing (i.e., not a continuation, divisional, or continuation-in-part) original utility nonprovisional application, or an original utility nonprovisional application that claims priority to only one prior nonprovisional or international application.
  • The petition must certify that (1) the claimed invention covers a product or process that mitigates climate change; (2) the product or process is designed to reduce greenhouse gas emissions; and (3) the applicant has a good faith belief that expediting patent examination of the application will likely have a positive impact on the climate.
  • The petition must also certify that the inventor or any joint inventor has not been named as the inventor or a joint inventor on more than four other nonprovisional applications in which a petition to make special under this pilot program has been filed.
  • The petition to make special must be filed within 30 days of the application filing date, and the application has not received any first office action, including any written restriction requirement.
    The application must contain no more than 3 independent claims and 20 total claims and no multiple dependent claims.

The USPTO began accepting petitions to make special under this pilot program on June 3, 2022 and will continue the program until June 5, 2023, or the date when 1,000 applications have been granted special status under this program, whichever occurs earlier. As of August 24, 2022, 71 petitions were filed, among those 28 were granted by the USPTO—a 40% acceptance rate. See

Patent applicants and inventors with utility patent applications covering technology for reducing greenhouse gas emissions should consider participating in the Climate Change Mitigation Pilot Program. This pilot program may significantly accelerate the substantive examination and issuance of patents that in turn may be enforced in litigation or licensing negotiations to maximize the impact of technologies for mitigating climate change and reducing greenhouse gas emissions. For example, many companies are looking to meet “net zero” goals on carbon offsets. See Carbon Offsets: A Coming Wave of Litigation?. By encouraging investment in new technologies in this area, the USPTO’s pilot program may incentivize and lead to the development of additional innovative options for achieving climate-focused goals.