USPTO Accepting Prioritized (Fast Track) Examination Requests Beginning May 4, 2011


On April 4, 2011, the United States Patent and Trademark Office (USPTO) announced that it will begin accepting requests for prioritized examination of patent applications. The requests will allow applicants to have their patents processed within 12 months, reducing the prosecution time from the nearly three years it takes, on average, to prosecute a patent application. The program is called Track One and it launches on May 4, 2011. Track One is part of a new Three-Track system, which the USPTO expects will provide applicants with greater control over when their applications are examined and promote greater efficiency in the patent examination process.

The program at this time is first-come, first-serve. Requests for prioritized examination will initially be limited to a maximum of 10,000 applications starting May 4, 2011, through the end of fiscal year 2011 (September 30, 2011). The USPTO will re-evaluate and make any necessary adjustments at that time (presumably with respect to the maximum number of applications that will be accepted for Track One).

The privilege of expedited prosecution comes with a hefty price tag – nearly five times the large entity filing fee of $1,090 currently charged for a utility patent application. The request for prioritized examination through Track One will add $4,000 to the standard filing fees for the application. The small entity discount of 50 percent will not be applied to the prioritized examination request fee, as it is with many other standard processing fees. The PTO indicated that it is working to obtain legislative authority for the small entity discount, but until that happens, small entities must pay the same as large entities for expedited prosecution.

Applicants must adhere to certain conditions to maintain Track One eligibility. Eligibility is lost when an applicant files a petition for an extension of time to file a reply, files a request for a suspension of action, or files an amendment to the application which results in more than four independent claims, more than thirty claims, or multiple dependent claims. The original application must be "complete" when filed. The complete application must include any excess claims fees paid on filing, and be filed via the Office’s electronic filing system if it is a utility application. Thus, the application must be filed with an oath or declaration under 37 CFR 1.63, the basic filing fee, the search fee, the examination fee, any excess claims fees, and any application size fee. The request for prioritized application must be filed with the application itself. Any Notice to File Missing Parts of the application will presumably result in the forfeiture of Track One eligibility - and the request fee (unless of course, the request fee was missing from the original filing.)

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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