The SAWS Program…

02.11.15

Did you know that the United States Patent and Trademark Office operates a secret program not mentioned in any USPTO published rule or any law called the Sensitive Application Warning System or SAWS? Through limited anecdotal accounts, Freedom of Information Act Requests and a leaked 2006 memo, applicants and patent attorneys have been piecing together the existence and impact of this secret program.

If a patent application enters the SAWS program, the examination may include many additional levels of scrutiny and years of delay. Anecdotal reports claim that the SAWS examination or review can include examination delays, instructions to examiners to not allow applications, and additional office actions, among other possibilities. Even more problematic for applicants is that the applicant is not informed that an application has been placed into the SAWS program, and many examiners, as well as the USPTO, are unwilling to respond to an inquiry as to whether a particular application is subject to SAWS. As a result, unknowing applicants can spend years and significant sums of money seeking issuance of a patent, an event which may never occur.

The criteria for a SAWS designation appears to be quite broad, allowing the USPTO to have significant discretion in placing patent applications into the secret program. Examples of the rather surprising and disconcerting criteria include:

1. Applications dealing with inventions, which, if issued would potentially generate unwanted media coverage;
2. Applications disclosing seemingly frivolous or silly subject matter;
3. Applications with claims of broad scope;
4. Applications with claims of pioneering scope;
5. Applications claiming the prevention or curing of diseases previously thought impossible to prevent or cure;
6. Reexamination / Reissue cases involving technology or companies recognized by the public or reported in the media, for which there is a high probability that the media would report on any future action taken by the USPTO;

Among many others…

Not only do the SAWS criteria appear to apply social and political criteria to pending patent applications, but the criteria appear to also apply current perceptions or ​“beliefs” about what is possible in science and technology rather than applying the core patent principals of ​“is it new, is it useful, it is not obvious over what came before.”

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