When people come up with an invention, they typically also wonder how long it takes to get a patent. When they learn that it can take years on some occasions, they ask why. We discuss the reason below and provide various ways to speed up the process significantly.
Why does it take so long to get a patent? A patent may take years to secure because the steps to secure the patent are time-consuming, including patentability searching, preparing a patent application, and waiting for the patent office to work through its backlog before it examines your patent application. However, the process can be expedited by filing a request to expedite.
Step 1: Patentability Searching
Patentability searching is the process of searching the patent database to determine if someone else has already come up with the same idea. If yes, you can’t get a patent because your idea is not new. If no, then you may be able to get a patent. I say “may” because no patentability search is perfect.
The patentability search should be conducted after you figure out how your invention will work. For example, if you have an idea for space travel, that in and of itself is not enough to start the patentability search. You have to figure out how one might travel in space. You will need a rocket, life support systems, etc. Depending on the idea or invention, you may require more or fewer details. The bottom line is that you are not ready to start the patentability search if all you have is an end goal (i.e., space travel).
Once you understand the mechanism of how your invention works, you are ready to start the patentability search. Here is where prototyping comes in. A prototype is just a working model of your invention. It tests that your invention works as intended. You will be surprised by how useful building a prototype is. The prototyping process will help you to understand how your invention works. Also, it will help you to understand what doesn’t work about your invention.
The patentability searching takes about 2 to 3 weeks to conduct, but that is after you have figured out how your invention works.
If you need to build a prototype, the patentability search might get delayed until after you build and test your prototype. Clients will estimate prototyping to take one month. Still, in my experience with my clients, it generally takes one month to one year for most simple products.
Step 2: Preparing a patent application
A patent application is a written description and drawings explaining how to make and use your invention. It’s simpler said than done. I’ve written up a few steps on how I prepare a patent application. Read Section 2 of Navigating the Patent System.
You can prepare the patent application yourself. However, if you choose to hire a patent attorney, the preparation time is about 4 to 6 weeks.
You also have to interview a few patent attorneys and figure out which one you think can do the job. That is no easy task since even the lousy patent attorneys can sound very smart.
Step 3: Waiting for the Patent Office (Backlog)
The most significant reason that a patent takes so long to get is that you need to wait for the patent office to examine your patent application.
The United States Patent and Trademark Office receives about half a million patent applications per year. They have about 8,000 patent examiners who work through this backlog of patent applications on a first-come-first-served basis. It takes time to get through all of the patent applications. For each one, a thorough examination is given. The Patent Office conducts a patent search even if you have already conducted one. A written office action is drafted and mailed out to the patent application.
Also, if your invention is in an impacted technology, say biotechnology or software, then it might take longer than, say, basket weaving technology which may not have as many patent applications in its backlog.
Step 4: Examination
When the patent office finally examines your patent application, it most likely will be rejected, not a notice of allowance. A response needs to be submitted to convince the examiner that your patent application should be allowed. You are given three months to respond and can take up to six months with the payment of an extension fee. The examiner is allowed four months to respond when you file a response, but this is not a hard date. They can take many months to respond.
The bottom line is that the examination process may take 8 months or longer before the examiner decides to grant your patent or you decide to abandon your patent application.
Step 5: Speeding up the patent process
You can expedite the patent process at the USPTO (1) if you are older than 65 years old or not healthy or (2) by filing a request to expedite with the payment of a fee.
Using Applicant’s Age and Health to expedite the patent process
If one of the inventors is older than sixty-five or in ill health, the patent office will put your invention at the front of the line. A Petition to Make Special based on age or health can be submitted to the patent office at any time to have your patent application expedited.
Even if the inventor is not 65 when the patent application is filed, the Petition to Make Special can be submitted later after one of the inventors turns 65 years old.
In my experience, the patent office loses these petitions often. I’ve filed these petitions before only to have the patent office forget to place these cases on an examiner’s docket of cases to examine. If you do file a petition to make special based on age, be sure to call the USPTO.
Filing a fast track request to expedite the patent process
If you are not over 65 or of ill health, you can still have your patent application moved to the front of the line under the Fast Track program. Instead of waiting in line with the other half-million patent applications for examination, you can bypass the backlog. You must file a fast-track request at the time of filing your patent application. You can file a continuation patent application with the fast track request if you’ve already filed your patent application.
In my experience, patent applications that are put in the Fast Track program get an examination within about 4 to 6 months instead of 16 months. Plus, unlike the petition to make special based on age or health, a special docket or calendar exists at the USPTO where these applications are put on. Put simply, they are not lost at the patent office. You don’t have to follow up with the status to make sure that they are put on an examiner’s docket.