The SAWS program disproportionately targeted individual and small entity inventors

The USPTO’s Sensitive Applications Warning System (“SAWS”) described in a companion post operated secretly for decades.  Information obtained from the USPTO under FOIA requests reveals that applications of individual and small entity inventors were disproportionately affected by the SAWS program by a factor of six compared to their relative proportion to large entity applications.  So while the number of large entity applications filed with the USPTO per year is about three times (3X) that of individual and small entity applicants, the number of large entity applications flagged under SAWS that are pending or have been abandoned are only half (1/2X) of the number of individual and small entity SAWS applications pending or abandoned.

Micro & Small Entity share of all pending and abandoned SAWS applications by Technology Center

The relative share of all pending and abandoned SAWS applications filed by micro-entities and small entity inventors by Technology center is shown in the plot above. The data was produced by the USPTO in a letter responding to FOIA Request F-16-00037 and believed to be current as of 2012.  For example, about 82% of all SAWS applications that were abandoned or pending in TC3700 – Mechanical Engineering, Manufacturing and Medical Devices/Processes – were filed by micro and small entities.  And 94% of design patent applications flagged under SAWS that were pending or abandoned were filed by micro and small entities.

The America Invents Act passed in 2011 directed the USPTO to affirmatively assist independent and pro se inventors.  Pro se inventors are those individuals who represent themselves before the PTO. They are not represented by a patent attorney or a patent agent.  The USPTO set up a pro se Art Unit 3649, and aggregated known pro se applications in this single art unit.   This is unusual because art units specialize in particular technologies – not in types of applicants.  But Art Unit 3659 groups all technologies together under the common criterion of having been filed by pro se inventors.

But according to documents produced under the FOIA, pro se Art Unit 3649 is one of the baseline focal points for identifying SAWS application.  SAWS guidance to examiners identifies “special applications within the pro se Art Unit 3649 (extremely broad claims, unusual subject matter, etc.)” as a criterion for flagging applications under SAWS.   Of course, the USPTO would not flag under SAWS large entities’ applications having “unusual subject matter” – it would bestow this honor only on pro se applicants.  See the internal USPTO emails and SAWS guidance on AU3649 produced in FOIA Request F-15-00107.

It therefore appears that individual and small entity applicants have been the major target of the USPTO’s SAWS program.

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