How long does U.S. patent and trademark prosecution take? (2021 edition)

The USPTO recently released its FY 2021 Performance and Accountability Report, which contains detailed information about allowance rates, average pendency, and other statistics about its review of patent and trademark applications this year. Each year, IP Spotlight analyzes this Report and, and we update our readers who often ask: how long does it take for a patent or trademark registration to grant?  To answer that question:

Patents: In Fiscal Year (FY) 2021, for the first time in nine years, the USPTO’s average time to first action increased, to 16.9 months in FY 2021 (compared to 14.8 months in FY 2020). The average total pendency — that is, the time from filing to either grant or abandonment — remained steady at 23.3 months.

The wait times varied based on the USPTO Technology Center that reviewed the application. The breakdown by technology included:

  • biotechnology and organic chemistry (USPTO Technology Center 1600) inventions had an average wait time of 17.0 months to first action, and an average total pendency of 24.0 months;
  • chemical and materials engineering (USPTO Technology Center 1700) inventions had an average wait time of 18.8 months to first action, and an average total pendency of 26.7 months;
  • computer architecture, software and information security (USPTO Technology Center 2100) inventions had an average wait time of 17.5 months to first action, and an average total pendency of 25.6 months;
  • networks, multiplexing, cable and security (USPTO Technology Center 2400) inventions generally waited 15.7 months to first action, and had an average total pendency of 22.9 months;
  • communications technologies (USPTO Technology Center 2600) inventions once again had the shortest average wait times — 13.5 months to first action, and an average total pendency of 19.9 months;
  • semiconductors, electrical systems and optical systems (USPTO Technology Center 2800) inventions experienced an average wait time of 15.7 months to first action, and an average total pendency of 22.3 months;
  • e-commerce, transportation, construction, and agriculture technologies (USPTO Technology Center 3600) inventions had an average wait time of 18.1 months to first action, and an average total pendency of 25.9 months; and
  • mechanical engineering and manufacturing technologies (USPTO Technology Center 3700) inventions encountered an average wait time of 18.6 months to first action, and an average total pendency of 26.7 months.

The total number of nonprovisional patent applications remained flat at approximately 651,000 in FY 2021. The number of provisional patent applications dropped by 9.2% to a five-year low of 158,334, which may signal that a decrease in nonprovisional patent application filings will occur next year.

374,000 patents issued in FY 2021, which is a decrease from the 2020 number bit similar to the 2019 number. The overall allowance rate for patent applications remained steady at 61.8%.

Trademarks: In FY 2021 the average time from filing to first Office Action in a trademark application more than doubled from the previous year, with the average wait time now 6.3 months to first action. Average total pendency was 11.2 months for applications that were not opposed or suspended during prosecution. which is an increase of nearly 3 months compared to FY 2020 numbers.

The longer wait time can be attributed to an unprecedented increase in new trademark application filings. Specifically, in FY 2021 the total number of trademark applications was 943,928, which is a nearly 28% increase compared to the FY 2020 statistic, and a 40% increase when compared to the number of filings made in FY 2019.  The USPTO plans to address this by better leveraging artificial intelligence and automation in the examination process, which the USPTO expects will increase examination efficiency.

One response to “How long does U.S. patent and trademark prosecution take? (2021 edition)

  1. In some cases, the USPTO will speed up the process by considering the applicant’s health, age, and the invention’s importance to society.

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