A very common question asked by patent applicants is ‘how long will it be until I receive a patent?’ The usual legalese answer to this is, of course, ‘it depends’. But upon what does it depend? Some of the factors are within an applicant’s control, such as whether they request examination at the earliest opportunity (in jurisdictions where a separate examination request is required), whether they request expedited/accelerated examination (where it is possible to do so), and how quickly they respond to office actions, pay required fees, and so forth. But after taking all of this into account, there is still a great deal that is beyond the control of the applicant.Additional factors that can delay grant of a patent include the backlog of applications in the relevant patent office, the nature of any objections raised by the examiner, and the difficulty of overcoming the objections – either due to their inherent merit, or to the determination of the examiner to maintain the objections in the face of the applicant’s best efforts to present amendments and persuasive arguments. After all this, however, if the applicant perseveres and is looked upon kindly by the fates, a patent will eventually issue. But how long after filing will that happen?
The US Patent and Trademark Office (USPTO) has a goal of reducing the average value of what it calls ‘Traditional Total Pendency’ (TTP) to 20 months by 2019. The TTP is defined as the time between the patent application filing date (which is the date of national phase entry in the case of an international application under the Patent Cooperation Treaty) and ‘final disposition’, i.e. issued as a patent or abandoned. According to data that can be viewed via the USPTO’s Data Visualisation Center Patents Dashboard, the TTP as of June 2017 is 24.7 months. However, this number really does not tell the whole story for many applicants.
For one thing, this TTP metric does not take into account applications in which a Request for Continued Examination (RCE) has been filed. An RCE is typically necessary where an applicant has not managed to secure allowance of an application following a second round of examination, but is not ready to give up and abandon the application. In many technical fields, the filing of at least one RCE in the course of examination is extremely common. When RCEs are taken into account, the TTP sits at around 32 months.
Furthermore, ‘average pendency’ characterises the complex process of examination, which occurs across applications in all fields of technology, using just a single statistic, which can be very misleading. As I will show in this article, average pendency (inclusive of RCEs) varies from 22 months in the fastest examination group to more than 57 months in the slowest (and that is assuming that a patent ever issues at all). Additionally, the distribution of application pendency varies enormously between different technology groups. In the slowest group, over an eighth of all applications that ultimately issue as patents take more than eight years to do so. If your application ends up in that particular cohort, it is of little comfort to know that the average pendency in the group is less than five years!
For rapid processing of your US patent applications, the best fields to be in include semiconductor device fabrication, vehicular technology, telecommunications, and pharmaceuticals. The worst (perhaps unsurprisingly) include fintech and e-commerce, genetic technologies, and surgical methods and devices.
Tags: Patent analytics, PEDS, US
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