How long is the utility patent application process?

The USPTO is notorious for its backlog of examining utility nonprovisional 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. So how long is the patent application process? Let’s take a look at data straight from the USPTO.

Average pendency of US utility nonprovisional patent applications

As of May 2017 November 2021, the average total pendency of US utility nonprovisional patent applications is roughly 28.6 months. This average length of a nonprovisional application is measured from the filing date of the nonprovisional to the 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 nonprovisional patent application to final disposal is approximately 23.4 months. If at least one RCE is filed, then the average total length of a utility patent application is 45.3 months. So the need to file an RCE adds almost 22 months to the average timeframe compared to an application without it.

A helpful way to interpret these timeframes is to think of the length of a utility patent in terms of rejections. If your utility patent application can reach an allowance within two substantive Office Actions – i.e., a first non-final and a second final – then the length of your patent application will fall under the shorter average timeframe of approximately 29 months.

If you need to respond to a second Office Action with further amendments and arguments, then an RCE may likely be required. In this situation, your utility patent application will fall under the longer average timeframe of approximately 45 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 nonprovisional application is 45.3 months. Depending upon the USPTO technology center and art unit, there may be a roughly 40%-70% chance that an RCE will be filed.

Pendency from RCE Filing to Next Office Action

In 2021, the average amount of time to receive the next Office Action after filing an RCE is approximately 2.2 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 2021, the average wait time for the first Office Action, aka Average First Action Pendency, is about 17.2 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 November 2021, the forward-looking First Action pendency is approximately 16.5 months. It’s somewhat encouraging to see that brand new applications expect to have a slightly 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 year and a half 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 at least one Office Action.

If an application is allowed after responding to two Office Actions or less, then the total time from the filing date to issuance may take a little over two years.

If an RCE is filed, however, the total pendency of a utility patent application will be extended to an average of almost 4 years.

What is the average wait time for patent examiner reviews?

As of November 2019 November 2021, the average wait time for a first Office Action is 14.8 17.2 months according to the latest USPTO statistics. Based on their current Forward-Looking First Action Pendency, the USPTO currently estimates that a utility patent application filed today should expect to receive a first Office Action in approximately 16.5 months.

If an RCE has been filed, the average pendency to the next Office Action is 2.2 months (as of November 2021).

If an after-final response is filed without an RCE, the average days to an examiner decision is 19 days.

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Vic Lin

Startup Patent Attorney | IP Lead Partner at Innovation Capital Law Group
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