The following is based on my exchange with the US patent attorney in late 2011. If you have an US patent application pending a review, I would strongly advise to read on.
The USPTO has a new prioritized patent application review process that is about twice as fast as the conventional one. Any pending US patent application is currently at risk of a competing application getting granted if latter is fast-tracked even if it was filed on a later date.
The way to protect against that appears to be to request the USPTO to publish your application now instead of waiting until it is reviewed and the patent is granted.
I filed a patent application not long ago. A couple of weeks ago I received an email from the patent attorney:
Not sure if this would be of interest to you, but wanted to bring to your attention that as part of the newly enacted America Invents Act, a prioritized examination process (called "Track I") is available for US Patent Applications.
Under the prioritized examination process, the USPTO's goal is to bring the examination process to closure (e.g., final rejection or allowance) within one year. This is twice as fast compared to the regular processing times, which are about 25 months as of November 2011.
So what are the conditions?
To participate in the program, we would need to file a continuation patent application from your currently pending application and concurrently submit a request for prioritized examination along with the patent application filing fees (approx. $500) and a prioritized examination fee of $2,400.*"
Additionally - and that's where things are starting to get funny - one can request upto 20 claims to be examined at a priority. If the application contains more claims than that, it would effectively be split in two and each part be examined separately, at different times.
Having mulled over parting with $2900, I decided to double-check something first -
Say someone files an application (A), then someone else files a copy of A and fast-tracks it. Wouldn't this cause the patent office to (erroneously) issue a patent to the second person?
To which my attorney replied -
You raise a good point. The fast-tracked application would likely be erroneously granted (unless the other application is published in time to show up in USPTO searches).
The way to address this under the currently in effect first to invent US Patent Law is for the first inventor to provoke an interference proceeding within one year of the issuance of the erroneously granted patent; however, interference proceedings can be very costly.
The good news is that there appears to be a simple workaround.
Another option to consider (...) would be to request early publication of your patent application.
This approach simply requires payment of the $300 publication fee earlier in the examination process rather than at the end concurrently with the patent issue fee.
The early publication would make it more likely that your patent application would be cited as prior art against a potential competitive patent application on the fast track.
This is exactly what we did. The USPTO should have the application published within 3 to 4 months.