Currently there are 51 applications under the AE program, which started August 25, 2006. The agency admittedly has no idea of how the program may scale, but confesses that at most 5% of its caseload could be handled on an expedited basis without examination in toto bogging down.

The agency recommends the program for art units crushed by pendency, such a business methods and telecommunications. Given that the nature of the pendency problem is lack of examiners, attrition and inability to hire a trend practically admitted by agency management, accelerated examination represents both a burden & load shifting: accelerated applications are the squeaky wheels that get the grease, worsening pendency for the sensible & uninspired.

The agency does not guarantee that examination will be completed within 12 months. The one-year time frame was expressed as a goal.

EFS must be used for all document correspondence. As admitted yesterday, that brand-new system is already creaking. EFS may become a formula for prosecution aggravation beyond the historical norm of senseless rejection.

The webinar boys mentioned that they are attempting to devise a separate path within EFS for accelerated examinations, but haven't figured it out yet.

The burdens on applicants are odious. New electronic forms must be used. Numerous picayune filing requirements exist. Reply must be made within a month, with no possibility of extension. Claims are limited to 3 independent & 20 total. Dependent claims cannot be argued during appeal, so dependents' fates hang on the independents; rather decimates the value of dependent claims from a prosecution standpoint. Significant claim amendment has its own special hell. In short, the deck is heavily stacked to examiner caprice. Then there are the prior art requirements.

Before filing, a prosecutor must have accomplished a prior art search costing thousands of dollars. A prosecutor not only has to perform a fairly thorough prior art search of the broadest possible interpretation of the claims, but also has to explain patentability over found relevant art, including explaining how the claims overcome obviousness rejection.

If claims are amended during prosecution, they must be explained as to allowability in light of the prior art. If that explanation has not been prepared, hustle it up within 30 days or be pitched out of accelerated examination, trashing the work already done, as well as having already tainted any other applications in the family.

Russ Krajec pointed out the inequitable conduct pitfall associated with enforcement of patents granted under accelerated examination. A finding of inequitable conduct requires both materiality and intent. Intent has been the saving grace of many a patent weasel, as it's not easy to prove in the affirmative. That said, if, during litigation of an AE patent, a defendant finds multiple anticipatory prior art references in the classification areas or non-patent databases searched, that may be sufficient demonstration of intent under the natural assumption that "where there's smoke there's fire," as the assumption had already shifted from no responsibility to search the art to a strong presumption under AE that the applicant thoroughly searched the prior art.

The technology areas with the worst pendency are some of those with the highest mountain ranges of prior art. Therein lies the nut of the problem. It's going to be damn expensive to bulletproof an AE application. As a professional prior art searcher, my rough estimate is that an AE prior art search and analysis alone should be budgeted at $6,000 or more, ten times the nominal budget for a patentability search. Put that on top of agent/attorney filing costs double to triple mere mortal applications. Business methods may not be as heavily patented as telecoms, at least not yet, but non-patent art, harder to survey, must be well covered. And the obviousness explanatory dance is likely to be hellish in many instances.

Assuming you want to brave accelerated examination, to provide a fallback, dual-track: file an accelerated examination application as a continuation or divisional of a nominal application. Yes, you'll need to file an identical IDS for both, but you don't need to explain for the slow-boat application. But you can bet that the slow-boat examiner is going to take cues from the the speedboat application examination.

The inequitable conduct taint follows a non-AE application to some extent, as the the requirement to reveal prior art remains. It's no stretch to argue that a slow-boat application was a backup to the speedboat getting blown apart by prior art.

There was an acknowledged question about inequitable conduct during the webinar, but the agency refused to touch it.

The bottom line: forget accelerated examination. Accelerated examination is an act of desperation for both the patent office and applicant.