Back in April 2013, the UKIPO published a consultation paper on introducing a “superfast” 90 day patent.  Following on from the consultation, the Government has now responded and  indicated that the scheme will not go ahead.

This might seem like a blow to industry.  Long Patent Office backlogs are a common source of frustration, meaning that there is a prolonged period of legal uncertainty before the scope of protection and the possibility of launching legal action is confirmed.  There is no question that reducing these backlogs and providing a speedier service would be a “good thing”.

However, in this case while a “90 day patent” made for a good headline back in April, I have to agree that on balance the decision not to go ahead with the change was correct.

Let’s start with some context – at present, the total official fees required in order to obtain a UK patent are £230 (assuming use of the industry standard electronic filing tools).  This covers the application, search and examination fees.  The first annual renewal fee (costing £70) is due four years from the filing date.  The proposed fee for the superfast service was indicated as being between £3500-£4000 in addition to these standard fees.

At present, there are already various options to accelerate the normal processing of UK patent applications.  “Normal” acceleration is not available automatically.  There must be some specific reason given to justify acceleration and the Office does not have to grant a request for acceleration.  However in practice I have always found it straightforward to obtain acceleration for my clients.  For example, a start up company trying to raise funds will usually qualify, or a company but with a specific need to obtain grant in order to compete against a third party or to guard against some potential infringement will also usually qualify.

In addition, there is a “green channel” that provides acceleration for any invention that shows an environmental benefit.  This requirement is also in practice applied quite broadly.  None of these acceleration options involve any additional official fees.

When acceleration is permitted, the UKIPO are good at turning the applications around quickly, and if the applicant responds promptly to any objections raised it is possible to have an application granted in 9 months or less.

These existing services are actually very good, and in my view the problem with the proposed superfast patents would have been the potential effect on other, non-“superfast” applications.  First of all, the UKIPO has limited resources and so the processing of superfast applications could impact on the performance of “regular” acceleration.  But at a more fundamental level the introduction of a much increased fee for superfast acceleration could create pressure for additional fees to be levied for regular acceleration services, or create pressure for “regular” accleration to be refused in cases where it is discretionary, with a practice to push applicants to take on the superfast route.

Therfore, I am grateful that this decision confirms the existing acceleration services will be maintained and the UKIPO’s services remain to be good value for money.