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There is exciting news for semiconductor innovators! On December 1, the United States Patent & Trademark Office (USPTO) announced the start of a pilot program seeking to incentivize patent applications directed to “processes or apparatuses for manufacturing semiconductor devices.” The program falls into line with the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act passed in 2022. The notice in the Federal Register can be found here.

Under the pilot program, qualifying patent applications will be advanced out of turn for examination. This means the application will be picked up for examination faster than it ordinarily would. Waiting to receive a first action on a patent application typically accounts for the longest delay in the examination process (in some technology sectors, it can take multiple years before an examiner even looks at the application). Other procedures are available for accelerating examination, but they have hefty price tags attached and/or require the applicant to do a lot of upfront work reviewing and characterizing prior art. The current pilot program removes these barriers.

To qualify under the pilot, the application must have at least one claim directed to a process or apparatus for manufacturing a semiconductor device falling under either Class H10 or H01L (for descriptions of the classes, click here for H10 or here for H01L). These classes cover wide ranges of devices. The application also cannot claim the benefit of the filing date of more than one prior filed application. That is, the application either must be original or a first continuation (or divisional) of an original. The USPTO is not affording this opportunity for applications that have lengthy family histories and have been around for a while.

Other formalities also must be met, including filing electronically in DOCX format, submission of certain certifications, and the number of claims in the application cannot exceed twenty (20) total and cannot include more than three (3) independent claims. The application also cannot have an inventor who has been named on more than four other applications that have been previously submitted for the pilot program. If a petition under this pilot program is not filed with the application, the applicant will have thirty (30) days to submit to qualify under the pilot. So, if you have filed an application within the last month that you believe could qualify for the pilot program, you should immediately file a petition.

Importantly, applicants should act quickly in general. The USPTO has set a prospective end date of December 2, 2024 for the pilot program, but the program ends early if 1,000 grantable petitions are received before that date. It is therefore imperative that potential beneficiaries of this program make sure to submit their application and petition as soon as possible. Fortunately, the USPTO is supposed to be publishing a running tally at a special website (which also includes more details about the program), so potential applicants will have some idea of their chances. However, it is unclear how often that number will be updated or how quickly petitions will be submitted. Applicants should not rely on the count and should instead be expedient in pursuing the benefits of the program.

For assistance with any of these matters, contact the experienced patent attorneys at Panitch Schwarze.

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