To start the examination of your invention and secure a patent, you must file a nonprovisional patent application (NPA). Once submitted, your NPA will be placed in a stack to be reviewed by a patent examiner. Given that there are over 802,955 applications in the queue and about 8,000 examiners working through them, it typically takes around 19.8 months for your application to get to the top of the stack for examination and see if it qualifies for a patent.
On the flip side, if you want to delay the examination costs, such as attorney fees for responding to office actions, filing a provisional application is a good option. A provisional application does not enter the examination queue and can give you up to 12 months of “patent pending” status. However, if your goal is to secure a patent sooner, you should file a nonprovisional application to get your patent application examined right away. Read more: Should you file a provisional or nonprovisional application?
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What is the queue for examination?
The queue for examination refers to the order in which nonprovisional patent applications are reviewed by patent examiners at the U.S. Patent and Trademark Office (USPTO). Once a nonprovisional application is filed, it is placed in this queue to await examination on a first-come, first-served basis. As mentioned above, the current backlog would take about 19.8 months to work through. This queue does not include provisional applications, which are not substantively examined.
Filing a Nonprovisional Patent Application (NPA)
A nonprovisional patent application is the formal request for the USPTO to examine your invention. To file it correctly, the NPA must include:
- A written description of your invention that explains how to make and use it
- Any necessary drawings to help understand the invention
- An Application Data Sheet (ADS)
- A declaration of the inventor(s)
- Payment of required government fees
Only a nonprovisional application gets your invention in line for examination. A provisional patent application will not enter the queue for examination. A PPA is not examined and will be automatically abandoned after 12 months unless you file a nonprovisional application. However, a PPA can be useful if you want to delay the start of the examination process and the associated costs, while still securing an early filing date and “patent pending” status.
Understanding the Examination Timeline
Patent applications are processed on a first-come, first-served basis. Once your nonprovisional application is filed correctly, your application would become the last application to be examined of the current backlog of 802,955 applications that were filed before you. The current average wait time for your application to get to the front of the line and receive your first office action is approximately 19.8 months.
If time is a critical factor for you, you can file a Track One request. By filing a Track One request for prioritized examination, your application moves to the front of the queue. This reduces the time to receive your first office action to about four to six months. While this option requires an additional fee, it can significantly speed up the examination process if obtaining your patent quickly is important.
Avoiding Delays in the Examination Process
Even after filing a nonprovisional application, your place in the examination queue can be delayed if there are errors or missing information in your application. For example, if your application includes figures that are not fully described in the written description, or if required documents or fees are incomplete, the Office of Initial Patent Examination (OIPE) will issue a notice asking you to correct these issues. Until the corrections are made, your application will not enter the examination queue, resulting in delays.
To avoid such delays, it’s essential to:
- Ensure that all required documents are complete and properly formatted.
- Double-check that your written description aligns with your drawings.
- Pay all required fees at the time of filing.
By submitting a complete and error-free application, you can ensure your application gets in line for examination without unnecessary setbacks.
Filing a Provisional Application to Delay Examination
Sometimes, you may want to delay the examination process because doing so also delays the costs associated with the examiner such as attorney fees for responding to office action. As such, filing a provisional patent application (PPA) can be a strategic option. A PPA does not enter the examination queue. Thus, it delays the examination process. But, the PPA still grants you “patent pending” status for up to 12 months. This delay allows you additional time to refine your invention, explore market potential, or raise funds before committing to the formal examination process. After 12 months, you will need to file a nonprovisional application and claim priority to the provisional application to begin the formal examination process.
Staying Informed on Processing Times
For the most current information on how long it takes to receive a first office action, you can check the USPTO Patent Dashboard. This resource provides real-time updates on average wait times and can help you manage your expectations and plan accordingly.
Conclusion
Filing a nonprovisional patent application is the key to entering the queue for examination and securing patent protection for your invention. To avoid delays, make sure your application is complete and free of errors. If you’re not ready for immediate examination or want to postpone costs, filing a provisional application can buy you time. On the other hand, if time is of the essence, you can request expedited review through Track One. Understanding the process and making strategic decisions will help you navigate the patent system more efficiently and protect your invention.