How Long Does Patent and Trademark Prosecution Take? (2011 update)

The USPTO recently issued its Performance and Accountability Report for FY 2011.  So, it’s time for my annual update to the commonly asked question:  “how long will it take for my patent or trademark application to grant?”   Here are a few highlights from the USPTO report:

Patents:  The average time between filing and first Office Action is 28.0 months, an increase of 2.3 months as compared to FY 2010 data.  However, the average total pendency (i.e., time from the filing date to patent issuance or abandonment) of a patent application is 33.7 months, representing the first reduction in average total pendency since at least  2005.   As Dennis Crouch of Patently-O recently pointed out, the average total pendency statistic can be misleading.  This is because when an applicant files a Request for Continued Examination (RCE) in a case, the USPTO counts all actions after the RCE as an entirely new case rather than an extension of the existing case.   When RCEs are considered, Patently-O explains that the average time statistic is  significantly higher.

The pendency rates vary depending on the technical field of the application.  Applications in Technology Center 2100 (Computer Architecture, Software & Information Security) generally wait 30.7 months to first action, applications in Technology Center 2600 (Communications) wait 31.4 months to first action, and Applications in Technology Center 2400 (Networks, Multiplexing Cable and Security) wait 33.6 months to first action.  Applications in Technology Center 1600 (Biotechnology & Organic Chemistry) wait 23.8 months to first action, while Technology Center 1700 (Chemical and Materials Engineering) typically wait 26.0 months to first action.  The total average start-to-finish pendency remains highest in Technology Center 2600 (Communications), where total pendency averages 40.8 months.

The total number of nonprovisional patent applications filed in FY 2011 exceeded 500,000, while the number of provisional patent application filings rose to over 150,000.  The USPTO granted 244,130 patents in FY 2011 – the highest number for any year in which statistics are available.  The overall allowance rate increased from  47.7% in FY 2010 to 48.0% in FY 2011.  Patent applications that take advantage of “Patent Prosecution Highway” programs with first review by a non-U.S. patent office are much more successful and achieve an 88% allowance rate.

Despite the increase in filings, the USPTO appears to be achieving some success in its efforts to reduce the backlog of unexamined applications.  In each year during the period 2006-2010, the USPTO had a queue of over 700,000 applications awaiting first action.  In 2010, over 726,000 applications awaited first action.  This number dropped to 690,967 at the end of FY 2011.

Trademarks:  In 2011 the average time from filing to first Office Action in a trademark application was 3.1 months, and the  average total pendency was 10.5 months.  Each of these numbers was about the same as the 2010 statistics.

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