How Long Does it Take to Get a Patent?

According to the United States Patent and Trademark Office (USPTO), it takes about 22 months to get patent approval after going through the steps to file a patent. If you're eligible for a prioritized examination for plant and utility patents, known as Track One, you might get approval in six to 12 months. This costs $1,000 to $4,000. According to other sources, approval length could be up to 25 months in the United States and 37 months in Canada.

Why Is a Patent Important?

Patents protect your intellectual property. You get ownership over your invention and any products created as a result of the patent. It prevents others from creating, making, or selling a product like yours. It also gives you legal recourse from infringers. Once approved, you own the legal rights to your patent for 20 years. You can also sell or license your patent to third parties. These third parties need:

  • Patent pending status
  • A completed and approved status from the USPTO

Steps to Patent Approval

Before filing a patent, find an experienced patent attorney. He or she will help you with:

  • Patent Searching (1 week to 6 months)
    • During this step, you search for patents like yours. This proves you're not infringing on any other current or pending patents.
  • Drafting a Patent Application (2 to 4 weeks)
    • If the search turns up nothing, you're ready to draft a patent application. For a patent attorney, this usually takes 2 to 4 weeks depending on the volume of work, type of patent, information from the applicant, and any changes necessary. If you file it yourself, it's just how fast you can make a draft without errors. When drafting the patent application on your own, have a patent attorney review it. A proper application includes the necessary description, illustrations, and paperwork. Once you file, your invention will have patent pending status.
    • When drafting an application, make anyone that sees the invention sign a nondisclosure agreement.
  • File to Acceptance (12 months to 32 months)
    • Once your file your application with the USPTO, a provisional or nonprovisional application will affect how long it takes for acceptance. A nonprovisional application goes into a queue to be examined by a Patent Examiner. The average time for a review from the Patent Examiner is 21 months. The average wait to get a patent is 32 months. A provisional application does not go into a queue. Instead, it gives you one year from the filing date to file a nonprovisional application. This gives you patent pending status. Waiting another year to file a nonprovisional application extends the time by a year.
  • Variances
    • These are average wait lengths. The invention's complexity and who it's assigned to determine the length of patent approval or rejection. A technical invention is given to a specific group of examiners at the USPTO. Depending on their queue, this could mean a shorter or longer wait time.
  • Track One
    • Track One is a prioritized type of patent application. It's only available to plant and utility inventions. When filing for Track One, you must pay a bigger fee. The USPTO tries to complete its examination of Track One applications in as little as 12 months. In some instances, Track One provides a patent in just six months. Track One applications are also subject to some restrictions:
      • No more than four independent claims
      • No multiple dependent claims
      • No more than 30 claims
    • Track One has extra fees. This includes $1,000 for microentities, $2,000 for small entities, and $4,000 for non-small entities.
    • Track One is limited to 10,000 applicants each fiscal year.
    • First Office Action usually takes 2.46 months with a final ruling of 6.55 months.
    • In 2013, 6,872 Track One filings were made and 6,333 got prioritized status. In 2014, there were 3,774 requests with 2,645 receiving priority status.
  • Allowance and Abandonment
    • It usually takes between 32 and 34 months for an application to get approved. This includes final rulings such as allowance (acceptance) and abandonment. Abandonment is when the applicant chooses to no longer pursue the patent.

Some patents take longer to approve than others. For example, a mechanical engineering patent takes an average of 33 months for approval.

Other considerations when determining how long it takes to get a patent include:

  • The country of filing
  • The field of technology
    • The International Patent Classification identifies seven fields of technology, including human necessities, transportation, chemistry and metallurgy, textiles, fixed constructions, engineering, physics, and electricity.
  • The steps taken to hasten the process

Patent Pending Explained

Patents that have been filed but not yet approved have patent pending status. You can use your pending patent to make, sell, and license the product during this time. The patent in question must describe and cover all elements of your invention to meet a patent pending status. However, others might hold a similar patent pending. This gives them legal recourse to prevent you from making and selling the invention. To avoid this situation, perform a right-to-use search before marketing, making, or selling your invention.

Once you receive patent pending status, the USPTO will send you an Office Action notice. This usually happens around 16 to 18 months after filing. You must respond to this notice, and the USPTO will respond back to you. Sometimes, you might have to file a Request for Continuing Examination or a Continuation Application. This might mean your patent pending status could last five to six years.

While your patent is pending, expect to spend between $200 and $600 on patent-related fees. In some instances, this can rise as high as $1,500 per month. 

What if My Patent Gets Rejected?

If the USPTO rejects your patent, it's not dead. You can file an appeal with the Board of Patent Appeals and Interfaces. However, this adds another year to your patent approval time. You're also subject to legal fees. There's no guarantee that the decision gets overturned. If the patent rejection does get overturned, this usually means it will take three years from the time of filing. Requests for Continued Examination (RCEs) add even more time. This usually increases the final disposition to 37.9 months from the date of filing.

Applicants can also file a continuation, divisional, or continuation-in-part application. This speeds up the process and gives priority to a parent application. 

Questions About How Long it Takes to Get a Patent

  • Why is my patent application taking so long?

At any given time, the USPTO has hundreds of thousands of patent applications. In 2012, 542,815 applications were filed. As of 2014, there were only 7,966 examiners and a backlog of 604,692 patent applications. With the amount of examination required, this causes longer wait times. High-traffic fields such as computer software have even longer wait times. Also, some applicants will fight the USPTO's decision, further slowing the process. If the patent is approved, it still might take three months to one year for it to be issued.

  • What factors does the USPTO use when considering my patent application?

In some cases, the USPTO will speed up the process by considering the applicant's health, age, and the invention's importance to society. 

  • Should I contact the USPTO while my patent is pending?

Whenever possible, you should follow up with the USPTO. This lets them know you aren't abandoning the patent application. It also lets you know of any snags or delays in the process.

  • How many approvals and applications are there annually?

In 2013, 303,651 patents were granted. There were also 177,942 provisional applications filed and 601,317 nonprovisional applications filed. California, Texas, New York, and Washington have the most filed patents. Abroad, Japan, Korea, and Germany topped the list of filed patents. Computers, communication, and mechanical engineering are the biggest industries for patent applications.

  • How long does it take for trademark approval?

Because there is less to consider, trademark application approval takes about 10 months.

  • What if I don't hear from the USPTO?

If you've filed an application and haven't heard from the USPTO within five months, contact the office immediately.

  • What if I'm filing in Canada?

The process in Canada is like that in the United States. A provisional application, however, is known as an incomplete patent application. A nonprovisional application is known as a regular patent application. They function the same as provisional and nonprovisional applications. For incomplete patent applications, you'll have one year to file a regular patent application. Re-examination requests must be filed within five years of the ruling. You must also respond to first action responses within six months. Expedited requests in Canada are similar to Track One requests in the United States. They incur a bigger fee but allow for a quicker decision on the application.

  • What if I want to file in several countries?

If you want to file a patent application in five or more countries, consider a Patent Cooperation Treaty (PCT) application. This gives the applicant the right to seek action in countries that are members of the treaty for longer than the 12-month period outlined in the Paris Convention. The PCT application isn't a patent application itself. It just allows you to file a single patent application one time to flow through several countries. Within 30 to 31 months, you must file a patent application with each country's patent office.

Filing for a PCT application also gives you 18 to 19 months to decide which countries you want to apply for a patent in.

Out of the 1.2 million registered lawyers in the United States, only 31,000 are experts in patents. If you have questions about a patent application, post your legal need to UpCounsel for a quick, professional response.