By Gregory A. Stobbs, Principal
Delegates met today on Ross Island, Antarctica, to officially celebrate the opening of the Antarctica Patent Office. Facing ever increasing fees and ever growing backlogs at the USPTO, applicants are turning to the Antarctica Patent Office in greater and greater numbers. The fees are low, the backlog nonexistent.
Antarctica has no judicial system. There are no patent trolls lurking among the penguins. With no judicial system, and no domestic market one may wonder why Antarctica patents are in such demand. The answer lies in an ill-publicized cap-and-trade provision of the America Invents Act. The provision, which was slipped into the Senate version of the bill and subsequently ratified, sets limits on the number of patent applications that may be prosecuted in certain earmarked technologies as a way of addressing the backlog.
Under this provision, the law sets a limit or cap on the number of patents that may be prosecuted in each of a list of earmarked technologies. The limit or cap is allocated to the USPTO in the form of application permits which represent the right to prosecute a specific number of the earmarked patent applications. The USPTO is required to hold a number of permits (or prosecution credits) equivalent to their earmarked pending applications. The total number of permits cannot exceed the cap, limiting total patent applications to that level. When the USPTO needs to increase its application permits it must designate another jurisdiction which has utilized fewer permits to prosecute applications in the earmarked category. Although the designated jurisdiction prosecutes the patent, the patent issues under the auspices of the United States government. The Antarctica patent is, for all intents and purposes, a U.S. patent.
As drafted, the provision was intended to be reciprocal. Any country that adopted a similar provision could trade prosecution credits with the United States. Unfortunately no other country saw the wisdom in this. Thus the provision lay fallow, until last November when an unincorporated research settlement on Ross Island, Antarctica opened an office to process applications in conformance with the requirements of the U.S. the cap-and-trade provisions.
Three months later, business is booming. The Antarctica Patent Office has prosecuted 123,009 applications since opening, issuing some 37,209 U.S. equivalent patents. According to Dr. Arne Saknussemm who currently acts as Commissioner of the Antarctica Patent Office, the most popular earmarked applications are business method applications. These are prosecuted quite rapidly, Dr. Saknussemm states, because the Antarctica Patent Office follows the “anything under the sun” rule. “Most business method patents are expected to be prosecuted during the season from October through February during which time the sun rarely sets for more than an hour or two,” Saknussemm states.