It typically takes years before a patent is granted, and this delay can be extremely frustrating for patent applicants. The long wait for a patent can have serious consequences for companies, such as new companies seeking financing and those hoping to stop competitors. While patent applications have value even before they issue, a granted patent is substantially more useful and more impressive to investors. Because of this, getting a patent early can be essential, and Track One can help.
The goal of the Track One program is to provide a “final disposition,” as either an allowance or a final rejection, within one year. In actual practice the program has been even faster, with final dispositions being sent on average about six months after grant of a Track One request. This is remarkably fast when compared to standard applications. The Track One program began in 2011, and while enrollment has increased each year, so far it has never hit the annual cap of 10,000 applications despite the speedy results it provides. This is likely due to the steep fee of $4,000 (reduced to $2,000 for small entities and $1,000 for micro entities) which must be paid on top of the usual filing fees.
While there are several requirements in order for a patent application to qualify for Track One, they are easier to meet than other prioritized examination programs. Track One is available to original utility and plant applications, and may also be requested when filing a Request for Continued Examination (RCE). The patent application must be complete, it must contain no more than four independent claims and 30 total claims, and the Track One request must be submitted when the application or RCE is filed. These requirements are relatively simple to fulfill, meaning that Track One is an option for many applications. However, given the cost of the program, patent applicants must consider carefully whether the gamble on a potentially quick patent is worth the price.
Besides the value of getting a patent quickly, one important consideration when evaluating whether or not to apply for Track One is how likely it is that the Patent Office will allow the application with minimal argument or amendment. That is, does it appear likely that the Patent Office will consider the invention to be patentable without much argument? The opportunities to amend the claims and make arguments are very limited under Track One. Once a Final Office Action is issued, the application loses Track One priority status and is examined under the usual, slower time line. This means that the patent applicant may have only one chance to make amendments and arguments. If these arguments are not successful and the Patent Office issues a Final Office Action, the application loses priority status. (Although the patent applicant can file another Track One request along with a Request for Continued Examination, the applicant will have to pay the Track One fee again.) Therefore, if the invention appears to be very unique and likely to get allowed with little or no arguments or amendments, then it may be a good candidate for Track One. However, if it appears that the prior art is similar to the claims, or if prosecution might be difficult, then Track One may not be the best choice. Alternatively, if the claims can be narrowed enough to make the invention more easily patentable, then Track One may still be a good option.
One strategy for taking advantage of Track One is to file a Track One application with a narrow set of claims that appear likely to be allowed quickly. These claims may be closely tailored to a product, for example. At the same time, or later such as upon receipt of a Notice of Allowance, a second, related application may be filed without applying for Track One. This second application may include a broader set of claims that would require more argument or amendment. In this way, a patent applicant can hopefully obtain a first patent very quickly and reap the associated benefits. The second patent application will take more time, but will allow the patent applicant to expand the scope of protection of the invention.
Track One offers a useful option for obtaining a patent much more quickly than the normal route. However, because of the expense of the program, as well as the possibility of losing Track One status, careful consideration and planning are required before proceeding. If patentability appears strong and if a quick patent is important, it may be worth risking the additional fee to file the application under Track One with the hope of getting a patent issued in less than a year.