How long does patent and trademark prosecution take? (2013 edition)

Each year, the USPTO releases a Performance and Accountability Report with useful statistics about allowance rates, average pendency, and other details in patent and trademark prosecution matters.  Last week, the USPTO released its Performance and Accountability Report for Fiscal Year 2013. This means that it’s time for IP Spotlight’s annual review of the question:  “how long does it take to receive a patent or registered trademark?”

To answer that question, here are a few highlights from the USPTO report:

Patents:  The USPTO continued to reduce patent application pendency in FY 2013. The average time between filing and first office action was 18.2 months, representing a decrease of approximately 17% decrease as compared to FY 2012 data. The average total pendency also dropped by 10.2% to 29.1 months in 2013. These improvements occurred during year when the USPTO received over 600,000 patent applications for the first time ever — a 6.2% increase in the number of applications filed.

The improvements can be attributed in part to the USPTO’s efforts to reduce the backlog of pending patent applications over 31% in the past five years. These initiatives include hiring additional patent examiners, providing options for prioritized examination, and use of the Patent Prosecution Highway program to share work with other patent offices around the world.

The pendency rates vary depending on the technology covered by the patent application. For example:

  • applications relating to biotechnology and organic chemistry (USPTO Technology Center 1600) have an average wait time of 13.4 months to first action, and an average total pendency of 27.5 months;
  • applications relating to chemical and materials engineering (USPTO Technology Center 1700) have an average wait time of 17.9 months to first action, and an average total pendency of 29.7 months;
  • applications relating to computer architecture, software & information security (USPTO Technology Center 2100) generally wait 19.6 months to first action, and have an average total pendency of 32.3 months;
  • applications relating to communications technologies (USPTO Technology Center 2600) have an average wait time of 24.3 months to first action, and an average total pendency of 37.2 months; and
  • applications relating to mechanical engineering products (USPTO Technology Center 3700) have an average wait time of 19.7 months to first action, and an average total pendency of 32.1 months.

The total average pendency remains highest for applications involving networks, multiplexing, cable and security technologies (USPTO Technology Center 2400), where total pendency averages 34.2 months.

As noted in previous years, the average total pendency statistic can be optimistic because it does not include Requests for Continued Examination (RCEs).  An RCE may be filed to ask the Office to consider additional amendments after final rejection. For purposes of pendency rate calculation, the USPTO counts the RCE as an entirely new case rather than an extension of the existing case.  Although the USPTO report does not identify the total number of RCEs filed in the year, it does appear that the number of RCEs is dropping.  At the end of 2013, of the applications that had already received first action, 14.7% of them were awaiting a new action after filing an RCE.  In comparison, in FY 2012, 18.2% of such applications were RCEs.  

The overall patent allowance rate was 55.2% in FY 2013– a slight increase from FY 2012’s 53.2%.   As in previous years, applications that took advantage of Track One prioritized examination or Patent Prosecution Highway (PPH) programs often received allowance more quickly.  Over 35% of Track One filings received an allowance on first action. PPH filings experienced a 90% allowance rate, which is not surprising given that other patent offices have already found PPH cases to be allowable.

Trademarks:  In FY 2013 the average time from filing to first Office Action in a trademark application was 3.1 months, and the average total pendency was 10.0 months.  These numbers are similar to the statistics for the past two years, and better than the USPTO’s goals of 3.5 months to first action and 12.0 months of overall pendency.

The USPTO warned that the continued improvement may not be sustained in FY 2014.  FY 2013 ended September 30 — just before the federal government shutdown of 2013. While the USPTO remained open during the shutdown, sequestration put several USPTO computer system improvement projects on hold, and the Office warns that trademark applications may be most impacted in 2014 by the delayed infrastructure improvements.

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