Expediting patent application examination at the U.S. Patent & Trademark Office

The Prioritized Examination program is picking up steam and emerging as a favorite method to expedite prosecution

Need a U.S. patent and need one fast? For many technology companies, particularly small, early-stage companies, patent protection is critical and often near the top of the list of necessities for attracting investors and/or collaborators. A patent-less technology company will often find itself starving for attention in the business world, and this article highlights the programs available at the U.S. Patent & Trademark Office (USPTO) that are designed to speed up the patent process. By taking advantage of these programs, patent applicants may capitalize on their exclusive patent rights sooner than through conventional examination, especially in areas where the technology is rapidly evolving.

What are the options at the USPTO for expediting patent application examination?

Which option is best for me?

As noted above, to enter into one of the USPTO’s expedited examination programs, applicants must satisfy certain requirements largely focused on the size of the application as well as payment of an additional fee. Aside from costs, additional considerations will play a role in pushing an applicant towards one program over another. For example, in the AE program, applicants must conduct a search on the patentability of the filed patent application claims and also prepare an accelerated examination support document which identifies the references most closely related to the claims, and sets forth the applicant’s arguments for patentability. In essence, the applicant is admitting to the relevance of specific references and the relation of these references to the claims, without first being given a rejection from the USPTO. An applicant should therefore evaluate the risk of such submissions before proceeding with the AE program.

Contributing Author

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Eric M. Brusca

Eric M. Brusca, Ph.D. is a partner at Marshall, Gerstein and Borun LLP. His practice focuses on biotechnology patent prosecution for a...

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