How bad is the USPTO backlog?

The USPTO is notorious for its backlog of examining utility non-provisional patent applications. First-time utility patent applicants should expect the process to take several years. To the extent that getting a utility patent granted is significant to the growth or success of a business, entrepreneurs should factor this years-long timeline in their business plans.

Average pendency of US utility non-provisional patent applications

As of May 2017, the average total pendency of US utility non-provisional patent applications is roughly 33 months. This average length of a non-provisional application is measured from the filing date of the non-provisional to ultimate disposition of the application, e.g., grant or abandonment, including Requests for Continued Examination (RCE). Excluding RCE’s, the average pendency of a utility non-provisional patent application to final disposal is approximately 25.7 months.

Pendency of Applications with at least 1 RCE

For applications which include at least one RCE, the pendency of such applications from the filing date to ultimate disposal of the non-provisional application is 53.5 months. Depending upon the USPTO technology center and art unit, there may be a roughly 40%-70% chance that an RCE will be filed. Thus, the average length of an application with at least one RCE is approximately 20 months longer than the total average of all applications, and approximately 28 months longer than the total average for applications without an RCE.

Pendency from RCE Filing to Next Office Action

In 2017, the average amount of time to receive the next Office Action after filing an RCE is approximately 2.8 months.

Pendency from Application Filing to Appeal Decision

In 2017, the average pendency from the application filing date to a Board decision is 77.6 months.

First Office Action pendency

In 2017, the average wait time for the first Office Action, aka Average First Action Pendency, is about 16.4 months.  The average wait times and total times vary depending upon the Technology Center for the particular technical subject matter.

For new applications filed in or around May 2017, the forward-looking First Action pendency is approximately 14.2 months. It’s somewhat encouraging to see that brand new applications expect to have a shorter pendency to a first Office Action than the current average.

How much time does it take to get a US utility patent?

In summary, it takes about a little over a year on average to receive a first Office Action in a utility patent application. Since utility applications are rarely allowed without any rejections (i.e., “first action allowance”), you should expect to receive one or more Office Actions.

If an application is allowed after a first response to a first non-final Office Action or a second response to a final Office Action, then the total time from the filing date to issuance may take a little over two years.

On the other hand, if a final Office Action is issued in response to a first Office Action reply and an after-final response appears unlikely to get the application in condition for allowance, then you may have to file an RCE. As shown above, filing an RCE may extend the total pendency of the application by approximately two years to an average total pendency of roughly 4 1/2 years.

The following two tabs change content below.
Vic Lin

Vic Lin

Startup Patent Attorney | IP Chair at Innovation Capital Law Group
We love working with startups and small businesses. I help entrepreneurs protect their intellectual property so they can reach their business goals.