Track One Patent Examination

The ordinary course of patent examination is slow.  Typically, it takes two to three years, or more, to have a patent application allowed, or to receive a final rejection from the USPTO.  For some applications, you’re going to want the USPTO to act faster.  Filing your patent application with Track One status is one way to speed up prosecution of your patent application.

Typical Patent Examination

Ordinarily, it takes about 26 months to get a utility patent application to a final disposition – either the patent is allowed, or the patent application receives a final rejection (at which point the applicant can abandon the application or can continue trying to have a patent granted).  When an applicant files a Request for Continued Examination, or RCE (which allows an applicant to file claim amendments and arguments after a final rejection), the total time that a utility patent application is pending averages about 33 months.  Both of those pendency times have been decreasing over recent years, and you can view USPTO data at their dashboard.  The USPTO says that by sometime in 2019, it plans to speed up the average time it takes them to send a first response to patent applicants, by shortening the pendency period (the time from filing to a first Office Action) from the recent average of 16 months down to 10 months.  Even if they reach this goal, Track One examination is still faster.

Track One Examination

The USPTO’s Track One program offers faster patent examination: you should get a final disposition, either an allowance or final rejection, within about twelve months.  Track One examination is available by petition, and for a fee, in utility patent applications and plant patent applications, though not for design patent applications.  A first Office Action is averaging about two months from the grant of the petition (as opposed to about 16 months for ordinary patent examination).  The total time to a final disposition is averaging about seven months from the grant of the petition, and is about 5.5 months if you receive an allowance.  You can see the USPTO’s data on time periods for Track One examination here.  Note that the time periods above start when the petition for faster patent examination via Track One is granted, which usually takes about 2 months, but can be sped up to one month or less for an additional fee (as of this writing, $400, $200, or $100, depending on entity size).

Requirements for Track One examination

To be granted, a petition for faster patent examination via Track One must have:

• a specification including claim(s), but no multiple-dependent claims, and no more than four independent claims and no more than thirty total claims;
• any required drawings;
• an executed inventor’s oath for each inventor, or a signed application data sheet with name and address for each inventor;
• the filing, search, and examination fees required for the application (read more at my post on application filing fees);
• the publication fee (currently $0);
• the prioritized examination fee; and
• the processing fee.

All of these required items must be submitted on the same day, or the request will be dismissed.  If you file a normal utility patent application or design patent application, and decide you want to have it considered for Track One status, you must file the petition that same day.  If you wish to have your application considered for Track One after the filing date, you may be able to do so by filing a continuation patent application, or a continuation-in-part patent application, with the petition – for all the filing fees again, plus the fees for Track One examination.  Please see my blog post on continuation patent applications for more information.

How to keep or lose Track One status

Once granted, the application will keep the Track One status until any of the following happen:

• You file a petition for extension of time to extend the time period for filing a reply – so you have to respond within one or two months to most Office Actions.
• You file an amendment to amend the application to contain more than four independent claims, more than thirty total claims, or a multiple-dependent claim
• You file a RCE.
• You file a notice of appeal.
• You file a request for suspension of action.
• The USPTO mails a notice of allowance.
• The USPTO mails a final Office action.
• The application is abandoned.
• Examination is completed (37 CFR 41.102).

Costs for Track One examination

In addition to the filing, search, and examination fees (see my post on application filing fees), there are the prioritized examination fee and the processing fee.  The publication fee must also be paid the day of filing the Track One petition – it is currently $0, though that could change.  As of January 2019, those fees are summarized in the following tables.

Limits on number of Track One petitions

Only 10,000 Track One petitions will be granted in any fiscal year.  When the limit is reached, the USPTO will shut off the ability to file Track One petitions.  You can see how many have been filed at the USPTO’s dashboard for Track One examination statistics.  The data show that 800-1,000 are received in most months, and the limit of 10,000 is not usually reached – though it’s hard to imagine that the USPTO would really object to taking on more, with the increased fees.

Do you have questions? 

If you’re considering a Track One petition, or have filed one and have questions about how to preserve your application’s Track One, call me at 617-340-9295 or email me at my Contact Me page, to see how I can help.  Or, find me on Facebook, Twitter, Google+, LinkedIn, Google Local, or Avvo.  And if you’re wondering… I chose the image above from US Patent 3410223, for a Race track with cooperating race car retaining means, because it suggests a faster track, like Track One status for a patent application.