Accelerated Patent Examination

by Winstead PC

According to the United States Patent Office’s annual report, the average total patent pendency in 2012 for patent applications was 32.4 months.  For many patent applicants, this delay is unexpected and may significantly impact future business plans.  However, there are special avenues for accelerating examination.

A petition requesting prioritized examination (or petition to make special) can be made to request expedited examination.  Petitions to make special can be made without paying a petition fee if the basis for doing so is: (1) Applicant’s age (65 years of age or older) or health (evidence that the applicant’s state of health is such that he or she might not be available to assist prosecution of the application if it were to run its normal course); or (2) That the invention will materially: (i) Enhance the quality of the environment; (ii) Contribute to the development or conservation of energy resources; or (iii) Contribute to countering terrorism.

When the abovementioned situations do not apply, a petition to make special can still be made with payment of the petition fee by:

(1) submitting the petition and fee;

(2) filing the application as a non-reissue utility or design application filed under 35 USC 111(a);

(3) filing the application electronically via the USPTO’s electronic filing system (EFS);

(4) filing a complete application complying with 37 CFR 1.51;

(5) filing the application with 3 or fewer independent claims, no more than 20 claims total, and no multiple dependent claims (The petition must include a statement that applicant will agree not to separately argue the patentability of any dependent claim during any appeal in the application);

(6) filing an application for a single invention, including a statement that the applicant will elect a single invention for examination without traverse;

(7) including a statement agreeing to an interview with the examiner to discuss prior art, potential rejections, or potential objections;

(8) conducting a pre-examination search, which must be detailed by identifying the field of search by specifying the date of the search, U.S. Patent classes/subclasses searched, databases searched, search logic, or query used to search, as well as detailing databases searched (the search must involve US patents/publications, foreign patent documents, and non-patent literature); and

(9) providing an accelerated examination support document including an information disclosure statement (IDS).  The examination support document must cite each reference deemed most closely related to the subject matter of each claim; identification of all the claim limitations that are disclosed by the reference and where the limitation is disclosed; a detailed explanation of how each claim is patentable over the references cited; a concise statement of the utility of the invention; a showing of where each limitation of the claims finds support in the written description; the structure, materials, or acts in the specification that correspond to each means-plus-function claim element; and any cited references that may be disqualified as prior art because the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.

For additional information on accelerated patent examination, please consult with a Patent Professional prior to filing a patent application.


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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