According to the USPTO, it takes about 22 to 30 months to get a patent prosecuted and issued. The current USPTO average wait time is 24 months. In other words, it usually takes 2 or more years from the time a non-provisional patent application is filed to get a patent issued. The application will issue only if the invention is patentable, the application is written well, and all of the forms and formalities are proper. Being aware of all the deadlines and response times will ensure the entire process runs most efficiently, cost and time wise.
The time it takes for each step in the patent application process to be completed depends on how much time is needed to search, review, evaluate, draw, write, and review before filing. Before the initial filing to the USPTO, it will likely take weeks to complete a prior art search and patentability study, get the figures drawn, and write the claims, specification, and abstract even when preparing with a patent practitioner (patent attorney or patent agent).
Important Tip: There are several ways of getting patent applications prosecuted faster through the USPTO. Read more about getting your patent application prosecuted faster in our article on accelerating patent applications.
Patent Practitioners can Help Minimize Delays
The patent application process to get a patent allowed and issued is based on a complex set of laws, regulations, policies, and procedures. Therefore, working with a patent practitioner (patent attorney or patent agent) is recommended in order to be time efficient. Their experience and knowledge of the details and deadlines is useful to avoid time delays. Though it is possible to file a patent pro se, it may result in more time due to the research required to write and file a complete and proper response to an office action from the USPTO – especially if unexperienced.
Mistakes in Patent Applications Cause Delays
If there are inaccuracies or corrections that need to be made in an application, that can increase the time it takes to prosecute a patent application. If too many issues remain unresolved after exchanging more than two office actions on the merits, it may be necessary to file a request for continued examination in order to continue to prosecute a patent application seeking a notice of allowance and issue. Mistakes in patent applications may require additional time to prepare and file necessary corrections. The key to get a patent is to be sure to file the best patent application you can and completely respond to every objection and rejection from the patent examiner.
An office action refers to a written correspondence from a patent examiner. Office actions require the applicant to create a written response that addresses each objection and rejection the patent examiner has raised in order for the patent application prosecution process to continue. Failure to respond completely to an office action may result in additional responses and fees and/or the abandonment of the patent application. Failure to respond to an office action in a timely manner will result in the abandonment of the patent application. Avoid as many mistakes as possible when filing to get a patent for your invention. Consult our USPTO registered patent attorney.
What Kind or Type of Patent Application Impacts Time to Final Decision
Multiple factors may alter how long it takes to get a patent issued. One of the factors is the kind or type of patent you are trying to get. There are two different kinds of patent applications: provisional and complete (non-provisional). Narrowing down even further, there are three categories to these types of patent applications: utility, design, and plant. Note that when seeking patent protection for a new plant or design, these patent applications cannot be provisional. How long does it take to get a patent depends on kind of patent application and the number of applications submitted.
The type of application along with the kind of patent you are applying for will affect the time it takes to get a patent. Utility patents tend to take longer than design patents because they are more laborious to prepare before filing. In addition, the examiners at the Patent Office who review design patents have less of a backlog of applications to review than the utility application examiners. Issues found in design patent applications are also typically much easier to fix than those found in utility applications for patents.
Provisional Patent Applications Can Extend Time to Final Decision
Provisional patent applications are usually completed the quickest but will not help you get a patent. Provisional patent applications establish a filing date for an invention. Inventors can apply for a provisional patent application as soon as they can explain how the invention works, how it is used, and, importantly, how it is made.
Reduction to practice is required. Inventors do not need to have a prototype made in order to file to get a patent, but it must be actually possible to make the invention. Therefore, the wait time used for provisional patent applications depends on how quickly a complete patent application can be prepared and filed.
Provisional patent applications last 12 months from the date the application was filed. This 12 month period cannot be extended. In order to benefit from the early filing date offered by the provisional patent application, applicants must file a corresponding non-provisional patent application during the 12 month pendency period.
If an applicant fails to file within the 12 month pendency period but files within 14 months of the provisional application filing date, it is still possible to restore the provisional patent application. A grantable petition that states the delay in filing a corresponding non-provisional patent application was unintentional must be filed. This grantable petition will require a fee to be paid in order for the provisional patent’s benefits to be restored, and you must file a complete regular patent application at the same time.
Non-Provisional Applications Start the Examination Process
You cannot get a patent with a provisional patent application. Non-provisional patent applications are the formal applications submitted to the USPTO that can get a patent. The non-provisional patent application requires attention to detail in order to ensure support for the claims; therefore, it can take longer to write a non-provisional than a provisional patent application. Depending on the invention’s complexity and the number of claims, non-provisional patent applications can take up to 3 months or more to be filed.
Once a non-provisional patent application is on file, after a few months of processing, you can visit the USPTO website for time estimates using their first office action estimator.
Patent Application Process Time Ranges
The wait time for each step to get a patent depends on how much time is needed to complete that step in the application process thoroughly and thoughtfully. A patent practitioner can accelerate the process by dedicating their time, experience, and skills to completing each step concisely in order to avoid multiple rejections or objections in office actions. USPTO patent practitioners are either patent attorneys or patent agents. The time estimates provided here are based on our 5 steps to patent for seeking patent protection for your invention.
A prior art patent search is the first step to completing any patent application. This process can take anywhere from 1 week to 6 or more to complete, with most being completed in 2 weeks or less. The time depends on the complexity of the invention and the number of prior art found. The prior art search step is important so inventors have a reasonable good faith based belief that their invention is new and not obvious. Our prior art search includes the patentability evaluation for the invention in the time taken for the prior art search. Only if an invention is patentable do you write and file an application.
If the invention is patentable, the next step in the patent application process is writing the patent application. Depending on the type of patent being sought, this part of the patent application can be completed in 2 to 8 weeks, with our average being about 4 weeks. For writing a patent application, it is highly recommended to work with a patent practitioner as they are experienced and can draft an application more accurately. The time it takes to get a patent application ready depends on the complexity of the invention. Once an application is submitted the USPTO, deadlines apply.
If filing a non-provisional application, the patent application will be placed in a queue where it will eventually be reviewed on the merits by a patent examiner. How long this part of the process takes heavily depends on whether the applicant filed a utility, design, or plant patent and what the invention is. Each type of application is placed into a different queue or art unit for examination. Each art unit at the USPTO has its own different docket of cases and number of staff. The backlog varies within an art unit over time determined by the non-provisional patent applications submitted.
The average time for a patent examiner to examine a patent application is 21 months. The patent examiner will accept the application or send the applicant office actions for response. The patent examiner will continue reviewing a patent application and issuing office actions and responses until a final decision. Note that the final decision is either a notice of allowance or a final rejection. The time range for responding to office actions depends on how many objections and rejections there are to the claims of the patent application.
