Do you Depend on Pendency?
USPTO Director Iancu and Commissioner Hirshfeld published a blog on Wednesday, 9 October 2019, titled, "USPTO meets critical goals to reduce patent examination pendency." The two USPTO leaders reported that the goals for First Action Pendency (FAP)(<15 months) and Total Pendency (TP)(<24 months) had been met in the 4Q FY19 when 14.7 months and 23.8 months, respectively, were reported. In fact, the 12-month rolling numbers are 14.7 and 24.5 months, respectively. This means that the average application at the USPTO is receiving a first office action on the merits (first OA, expect the rejection) 14.7 months from its filing date and the average application is either issued or abandoned 23.8 or 24.5 months from its filing date.
With the USPTO receiving hundreds of thousands of applications each year, you might imagine that the different Technology Centers (TC) have different FAP and TP rates. And you would be correct. According to the most recent data available from the USPTO dashboard, the FAP averages range from 10.9 months (TC 2600, Communications) to 19.3 months (TC 3700, Mechanical Engineering). Not surprising, the TP also varies widely, ranging from 20.3 months (TC 3700) to 28.9 months (TC 3700). The next two longest TP are 28.5 months (TC 2100, Computer Architecture Software and Information Security) and 28 months (TC 1700, Chemical Materials and Engineering).
If your company is waiting on either a positive first OA (expecting the rejection doesn't mean it won't be a positive rejection) or a patent issuance in order to interest investors or validate your IP, you should plan on an average of 14.7 or 24.5 months (rolling averages) from the filing date, respectively. That's just over 1 year or 2 years before a positive result can be expected from the USPTO. Of course, these numbers can quickly lengthen if the first OA is not a positive one and a potentially long prosecution will be needed before an issued patent is obtained.
You and your patent counsel should look into the FAP and TP numbers of the Technology Center most likely to examine or currently examining your patent application. A realistic time frame for FAP and TP can be very helpful for mapping out your business milestones.
If 14.7 and 24.5 months are simply too long, then perhaps a Track One Prioritized Examination would help (3.4 and 12.4 months for FAP and TP, respectively). Track One is expensive, but maybe it's worth it. Contact me if you want to learn more.
Pendency can be your friend, depend on it.