How Long is the Patent Process (From Start to Finish)?

By Josh Gerben, Esq.

While you may be an inventor coming up with innovative ideas for products or systems, navigating the process of obtaining a patent for those ideas could be treacherous territory and a lengthy process. According to the United States Patent and Trademark Office (USPTO), it takes about 22 months to acquire a patent and with the help of an experienced patent attorney, the steps can be easy to follow. An attorney can help you navigate the waters of Intellectual Property law and patent applications while you can focus on what you do best in product development.

What are the steps needed to get a patent?

Every process follows a certain logistical path and obtaining a patent is no different. However, the path can get confusing, and being left without a map is a surefire way to make a mistake in applying for a patent. The steps outlined below will serve as a good resource in gaining an understanding of the full process.

1. Patent Search

Without a base, it is less likely that your patent can hold any ground. The first step is an incredibly important one: the patent search. Conducting a patent search for your product will help determine if your product, or a portion of it, even qualifies for a patent. A patent will only be issued on your product if you have invented something new and non-obvious. Thus, skipping the patent search can have the potential to land you with an expensive failed patent application for a product that fails to meet the minimum patent requirements. With the help of an experienced patent attorney, maneuvering the process to obtain a patent for your product is significantly easier. They can provide the most thorough and extensive patent search and develop a strategy to find the most success in obtaining a patent for your product.

The patent search process takes about 1-2 weeks.

2. Draft an Application

The next step in the process is to draft your application. The application will need to include the following information: detailed description of the invention along with carefully crafted patent claims, illustrations if necessary, and various forms and other required paperwork.

As part of the drafting process, you will need to determine which type of application you will be filing; a design application or a utility application. When filing a utility application, there are two options: provisional and non-provisional. A provisional application will provide you with a filing date and the ability to use the “patent pending” language for one year. However, unless you file a non-provisional application, either first or within one year of the provisional patent application filed date, you will not be able to receive a patent on your product. For instance, once filed, a non-provisional application will be reviewed by an examiner at the USTPO to determine whether the invention is patentable.

It is strongly advised that you seek the assistance of a patent attorney to draft your application for filing with the USPTO. This will prevent common mistakes from being made on the application.

3. File to Acceptance

The time from filing your patent application to the issuance of a patent differs and depends on the type of application you’ve filed. However, the common thread is that during this time you will need to respond to any office actions requested by the USPTO. Receiving an office action or communications from the USPTO during the review of your application is normal. In fact, the USPTO reports that nearly 80-90 percent of first-time patent applications are rejected. The most important thing in this situation is to respond to all communications and office actions in a timely manner, no matter the situation. Failing to respond in a timely manner could result in the termination of your application process.

How long does each step take?

Each step of the process takes a different amount of time, and the length of each can vary as well. Below, we’ve listed out the average length of each step in the process:

Patent Search: 1 week to 6 months

The length of time needed for a patent search depends on the complexity of your invention, what you’re looking to patent, and the commonality of the product. This search should be thorough to prevent any pitfalls for your patent application later.

Drafting the Application: 2 to 8 weeks

Drafting an application typically takes two to four weeks for an attorney with experience to draw up, although factors such as complexity of the invention and the level of detail involved can impact the timing. As detailed above, there are many things to consider and identify during the process to draft your patent application.

File to Acceptance: 12 to 32 months

After filing, your application will be assigned to a patent examiner within the USPTO. The length of the examiner’s queue, the complexity of your invention, and the type of application you have filed will determine your wait length. For a nonprovisional application, the average time for a review from the Patent Examiner is 21 months, and the average wait to receive a patent as a whole is 32 months. A provisional application gives you the right to use “patent pending” language for one year, allowing you to benefit from the protection of the language while filing your nonprovisional application to receive the full patent.

Variances

Variance in wait length occurs for a myriad of reasons. Each step in the process is assigned to a specific group of examiners within the USPTO and depending on the complexity of the invention you are seeking to patent, the process to review can be affected. Additionally, the wait time can vary based on the queue of products the team has to review.

Allowance and Abandonment

As mentioned, the entire process takes between 12 and 32 months. This timing is made from the beginning of the process through allowance, where the patent is accepted by the USPTO, and abandonment where the applicant chooses to no longer follow through with the process.

Track One

Track One is a type of application that is prioritized within the USPTO that is only available to plant and utility inventions. Track One patent applications are fast-tracked and the USPTO attempts to complete them within 12 months of their filing.

Track One applications have a variety of limitations:

• Between $1,000 and $4,000 of extra fees
• Limited to 10,000 applicants in one fiscal year
• No more than four independent claims
• No multiple dependent claims
• No more than 30 claims

Obtaining a patent for your product is necessary for its protection but requires a lot of time, effort, and patience. The USPTO processes thousands of patent applications every year and this queue can put a hold on your ability to confidently use your product. Even if you are still in the development of your invention or are showcasing it to the world, starting the patent process as soon as possible allows you to capitalize on the time you have before you actually need the patent to protect your invention. Luckily, the first step in obtaining a patent is a simple one: partner with a patent attorney. Their expertise and experience will make what can be a daunting process simple, effective, and mostly pain-free.

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.