The PTO refuses to disclose which applications are currently in their “patent purgatory.” The closest clues that might help deduce the criteria are statements from those internal documents which call out potential SAWS targets such as applications “which would potentially generate unwanted media coverage (i.e., news, blogs, forums),” those disclosing “seemingly frivolous or silly subject matter,” ones with “broad” or “pioneering scope,” or those “related to patents presently being litigated.” Those first and last ones, in particular, seem to indicate a fairly clear conflict of interest. Patent applicants often wish to fast-track their filings when securing their intellectual property is particularly time-sensitive, such as if they are involved in litigation. Sidelining such applications can put innovators at a huge disadvantage. And speaking of “broad scope,” the PTO documents also itemize some very general technology-related categories which might elicit SAWS classification, including “processes and apparatuses involving education,” “smartphones,” and even “Internet-enabled systems.” With the huge number of applications that exist in these tech spheres, clearly, the PTO cannot send all of them into this separate funnel, so there must be some other criteria at play; how arbitrary—or subjective—those criteria are is anybody’s guess. An Agency spokesman has even indicated that only “a handful” out of the thousands of applications that are reviewed every year get sent into SAWS review.
The program goes well beyond “quality assurance.” It seems that those applications unlucky enough to be red-flagged into this covert system don’t get equal, unbiased consideration, nor do they proceed through standard channels towards disposal. Indeed, SAWS goes against all notions of transparency and fairness that applicants should expect—and demand—from government agencies. The program should be fully disclosed so that the public can review and provide input into how to run an evenhanded patent system for all.