USPTO’s new fast track examination provides opportunity for early patent issuance

Companies should be proactive and use the Track I Prioritized Examination Program to take advantage of shorter patent determination wait times

Utilizing traditional filing procedures, an applicant for a U.S. patent can expect to wait on average more than three years after the filing of a patent application to receive a final determination on patentability from the U.S. Patent & Trademark Office (USPTO). That is a long time to wait for a “thumbs up” or a “thumbs down” from the USPTO in the form of either a notice of allowance or an appealable final rejection. This delay can cause discomfort for, and negatively affect the valuation of, companies that rely on patents to protect their business interests, because the substantive patent rights—e.g., rights to exclude others from making, using and selling the invention—do not take effect until after the USPTO completes its examination of the patent application. The applicant does not have any substantive rights while a patent application is pending.

The USPTO recently enacted a Track I Prioritized Examination Program as part of the America Invents Act (AIA). The goal of the program, which took effect on Sept. 26, 2011, is to provide patent applicants who file under the program with a final determination on patentability (thumbs up or thumbs down) within a much shorter timeframe—a year or less. And, initial reports are that the program is much faster than that. Within its first year, multiple applicants have received notices of allowance for their patent applications within 90 days. One applicant received a notice of allowance within 54 days. That is more than 12 times faster than regular examination at the USPTO.

Contributing Author

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Peter Snell

Peter Snell is a Member in the Intellectual Property Section of Mintz Levin's New York office. Peter litigates patent infringement, patent invalidity and other intellectual...

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