Traditionally, the United States Patent and Trademark Office (“USPTO”) has had only one track for examination of patent applications, including the ability to petition for special treatment. Now, the USPTO is in the process of moving toward a 3-Track system to provide greater efficiency in the patent examination process. Proposed Track I of three tracks provides for the option for accelerated patent application processing. (See Changes to Implement the Prioritized Examination Track (Track I), 76 Fed. Reg. 6369 (Feb. 4, 2011) (to be codified at 37 C.F.R. pt. 1) (explaining the details of Track I).

Proposed Track I may be utilized by applicants to obtain faster examination of applications. The goal for accepted Track I applications is to receive a final disposition within twelve months from the granting of priority status. Final disposition of such applications include:

  • Issuance of a Notice of Allowance;
  • Issuance of a Final Office Action;
  • Filing of a Notice of Appeal;
  • Declaration of an interference by the Board of Patent Appeals and Interferences;
  • Filing of a Request for Continued Examination; or
  • Abandonment of the application.

It is important to note that this proposal does not provide for prioritized status for the life of the pending application. For example, special accelerated status is not provided for an appeal or an interference proceeding. Additionally, if an extension of time to extend the period for filing a reply is filed, the application’s prioritized status will be terminated.

Along with requesting priority status, the following are additional (proposed) requirements for an application to qualify for Track I:

  • The application must be an original utility or plant non-provisional application filed under 35 U.S.C. § 111(a), filed on or after the implementation date of the Track I procedures (including new continuing applications);  
  • The application must be electronically filed via the USPTO’s EFS-Web system and be filed complete (as described in 37 CFR § 1.51(b));  
  • The Applicant must pay the required fees for requesting prioritized examination at the time of application, including examination, processing and publication fees; AND  
  • The application may not have more than four independent and thirty total claims.  

The USPTO plans to hire additional examiners to review and process prioritized applications to reduce any further delay on non-prioritized applications. In order to accomplish this, increased examination fees will be charged for prioritized examination requests.

The current proposed examination fee for a prioritized examination request is $4,000. If legislation is passed to provide a fifty percent fee reduction for applications that qualify for small entity status, the expected examination fee will be $4,800 for large entities (and $2,400 for small entities).

Additional information about Proposed Tracks II and III will be available in the future.