obvIPat - Obviously Patentable

The blog for inventors, in-house counsel, & entrepreneurs.

How Long Does It Take To Get A Patent?

by Bruce Jobse

Just how long does it take to get a US patent given the USPTO’s current level of performance?  Last month the USPTO showed its report card publicly via a new Data Visualization Center website and it appears that there is plenty of opportunity for improvement.  We’ve listed some of the more problematic subjects and the respective performance metrics below:

1. Number of Applications Awaiting Initial Examination – 728,055

Yes, that’s right.  Almost three–quarters of a million patent applications are currently sitting around waiting to be examined for the first time, including, possibly yours.

2. Average Wait before Initial Examination – 26.2 months

An application waits, on average, for just over 2 years after it’s filed before an examiner looks at it.  This number doesn’t reflect the true gravity of the situation for certain technology groups, such as electronics, computer hardware and software, business methods, medical devices and pharmaceuticals, in which applications have historically waited more than three years before being initially examined.

3. Average Total Pendency Time – 35.4 months

This number reflects the average total time it takes for “traditional” examination processes from application filing to either notice of allowance or rejection, but does not take into account Requests for Continued Examination (RCE) or other means of re-filing an application.  The average total time it takes for examination processes, including applications that have been re-filed using the RCE mechanism, is 42.8 months.  The filing of a continuation application can extend the average pendency to 71.6 months, while the filing of a divisional application can extend the average pendency to 69.4 months.

4. Application Allowance Rate – 45%

The number of patent applications allowed without having to file an RCE is 45%.  The allowance rate including those applications which have to file an RCE is 60.2%.

5. Average Pendency for Appealed Applications – 76.1 months

Many patent applicants must decide whether to appeal an examiner’s rejection to the USPTO’s Board of Patent Appeals and Interferences.  For applications getting a final decision on appeal, the average time from application filing date to decision is close to 6 1/2 years!  With the large number of examiner decisions being appealed, this number is likely to increase in the future.

Overall, not a very good report card.  Although we give Director Kappos an “A” for effort for his proposed Three Track Examination Process, this initiative will require some time before having any real effect, particularly if the number of patent examiners, currently at around 6000, does not increase substantially.  Congress’ recent stopgap budget measure, freezing funding for the USPTO and preventing the agency from using the $70 million in extra fees collected during 2010 from being used to help address the backlog of patent applications, will not help improve the situation. Consequently, there is no need to regularly check the USPTO’s performance metrics on their new data visualization website; those numbers are not likely to change significantly for quite some time.

Just how long does it take to get a US patent given the USPTO’s current level of performance?  The answer: between 3 and 3 1/2 years for a majority of applicants, but substantially longer for those who choose to either restart the examination process with the same application, or who appeal an examiner’s decision.


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