Fast Track 12-Month Examination Begins May 4, 2011 – $4,000 fee

The new prioritized examination system known as “Track One” will begin on May 4, 2011. For a $4,000 fee, the USPTO will prioritize the handling of your patent application with a goal of reaching a final disposition within twelve months. A prioritized application is “accorded special status and placed on the examiner’s special docket throughout its entire course of prosecution before the examiner until a final disposition is reached.” Here, of course, “final disposition” means that the application is either allowed, abandoned, or is subject to a “final rejection” (which can then be appealed).

Qualification criteria:

  • Application must be filed on or after May 4, 2011 using the the USPTO’s electronic filing system;
  • Application must be “complete;”
  • The request for prioritized application must be filed with the application itself;
  • Application may contain no more than four independent and thirty total claims; and
  • The $4,000 fee must be paid in addition to the normal filing fees. Without congressional legislation, the USPTO asserts that it cannot offer a small-entity discount.

Due to resource constraints, the PTO is limiting the track one initiative to 10,000 applications for the May-Sept 2011 period (the remainder of FY 2011).

The $4,000 fee was set after the USPTO estimated the average cost to the Office of performing the service. Of course, we live in a market economy where higher prices tend to lower demand. In thinking about the potential demand for expedited examination, I surveyed Patently-O readers who handled some aspects of patent prosecution and filing decisions and asked them what percent of their applications they would expedite based upon a $4,000 fee. (That time, I used software to largely eliminate the potential for multiple-voting.) The following histogram shows that the bulk of responses would expedite fewer than 5% of their cases. More than half indicated they would expedite less than 2% of their cases.

PatentLawImage120

The EPC offers the PACE program that allows applicants a cost-free acceleration of processing. In that system, fewer than 5% of applicants request accelerated examination. As one response indicated, many applicants are “generally happy to wait for a patent to issue. ‘Patent Pending’ status is good for marketing, implies new product development. The market we are in is not one where patent speed is important.”

Documents:

77 thoughts on “Fast Track 12-Month Examination Begins May 4, 2011 – $4,000 fee

  1. 77

    The true cost is $4430. We raised it in the comment period but the Office gave a hand waving response. To participate you must also pay a $130 processing fee and pay a $300 publication fee normally only collected after allowance.

  2. 76

    Les,

    wtvlfdt dont answer to actual issues. And he dont even have the nifty hook of “Homey dont do answers.”

    He will, however call ya a chicken little if ya complain abouts anything he dont deem proper. At least ya got that goin for ya. Which is nice.

  3. 75

    Much lolz here as Ned-O whining on this topic be one O the few areas that he be correct on.

    The fact that you single this area out is downright shockers, shockers I tell ya.

    Not.

  4. 74

    Ned-O-gram,

    Dontcha know that that style come with the tryout to join the horsemen? Insultin newbies, even canser survivors be all the rage with that crowd.

    And while I can no doubt be caustic, my venom is typically applied to maximise chuckles from the self-professed “experts” and high priestesses. Is it much surprise how often those two circles intersect?

    Just an observation.

  5. 73

    The failure of your whining about BRI to gain you any sympathy is really getting to you, huh Ned?

  6. 72

    What, I have seen enough of you. You are another arrogant pip-squeak who have very little useful to offer, but instead likes to personally attack people. This bit about assuming that Les favored compact prosecution for example. Whined about it even.

    I hope you decide to stop posting here. Please.

  7. 71

    When did I whine about compact prosecution?

    Compact prosecution is the Office’s alleged goal, not mine.

    I think haste makes waste.

    That said…the issue is the 3 years the office waits before it looks at an application, not the day or two it spends considering the application. Or the 3 months it might take me to find a spot in my schedule to try to decipher the incoherent, inconsistent gibberish and in some cases out and out falsehoods that pass for an office action and try to prepare a civil response that pretends the office action includes comprehensible complete sentences to which one can actually respond.

    To ask me to pay a premium to avoid that 3 years is one thing. To ask me to accept further prosecution restrictions that can impact the protection provided by the patent is simply wrong.

  8. 70

    For somebody who’s constantly whining about “compact prosecution” you seem rather reluctant to acknowledge that applicant has a part to play in that process.

  9. 69

    The idea that I would PAY and extra 4000 bucks American to have my hands tied and to be rushed is PATENTLY ABSURD. I might pay extra to have the Office move faster, like I might pay Fed Ex for overnight delivery…. but I’m not going to pay extra for the privilege of being rushed myself.

    The idea that I can only have 4 independent claims, so that if my 26 dependents are found allowable I can’t amend to place those 26 claims in independent form is absurd.

    The idea that I would then have to pay an extra independent claim fee for each of those claims to be placed in independent form, even though they are not going to be re-examined, is also absurd.

  10. 68

    The potential end to fee diversion (via the patent reform legislation currently making its way through Congress) certainly came at the right time. It would have been criminal to have allowed Congress to raid the USPTO of the increased revenue that the patent office is likely to earn through Track One of the 3-track system.

  11. 67

    Money for nothin, chicks for free – no responsibility!

    Sounds really cool, just not really possible.

  12. 66

    I do believe we should make a program that offers immediate classification and subsequent examination at a very high price. And the price can be higher for such “immediate” examination so that it is concluded within a month or two if the applicant cooperates. I should think that 10k should cover it. Really all you should be having to do is be able to pay some examiner to give you his weekend.

  13. 65

    For a million, they issue you a blank piece of paper with a Patent Number already on top. Then you just fill it in with whatever you want (like a patent for the wheel, or a method of silencing Malcolm Mooney, etc.).

  14. 64

    Quite so Malcolm.

    Hey ho, what fun: thanks to your prompting, I have copped on to another meaning. To “cop on” is (at least in olde England) to catch the drift of what is going on around you. I wonder how long ago it was, in teenage circles, that the meaning of “cop a feel” was lost in antiquity. But “cool” came back though, didn’t it?

  15. 63

    Ah, got it. Found this online:

    Long before cop or copper was a term for a policeman, it was an English colloquial verb. To cop had the meaning of ‘to catch’ or ‘to get’. This first appeared in the English language in the early 1700s.

    The ultimate origin of the noun to cop is disputed. It either derives from the Dutch kapen, meaning to take or it derives from the French caper, also meaning to take and ultimately from the Latin capere.

    So the expression “not much cop” means something wasn’t worth catching or getting.

    The term “cop” turns up with the same meaning in some common US slang expressions, e.g., “cop a buzz” (get high) or “cop a feel” (manage some trivial sxxual groping).

  16. 62

    Can I offer some other amount of compensation? Say, $10k for six months, $50K for a week, and 500k for an immediate allowance?

  17. 61

    Max, the data clearly shows that breakthrough inventions and most new jobs in America come from startups. It is in our national interest to foster this sector as much as we are able.

    In contrast, outside of the drug and chemical industries, new big company patents mostly add to a pile. Such companies use patents for two purposes: defensive purposes (including cross licensing) and to extract revenue from the small fry who are operating in their “field.” The big companies cannot sue each other because each would be infringing numerous of the others patents. But the small fry have virtually no defense against the big portfolio and must pay protection money.

    Speaking of this, if there is anything we needed in terms of patent reform is to put a stop to aggressive portfolio licensing by major companies. There is no simple solution as I fully support patent rights. But given the disparity of resources, the little guy simply cannot argue the merits of a patent dispute with the big guy who is serious.

    And, no, I am not a Marxist.

  18. 60

    Sorry. “Not much cop” = “not much good”. No idea where this slang expression came from originally.

  19. 59

    < ...it just seems unfair that the PTO or any government agency would allow their richer clients to move to the head of the line simply because they can afford to pay the $4000 fee, while everyone else has to wait their turn.

    By that same logic it is unfair to charge any fees at all, since some cannot afford to pay them. I’m afraid you’re going to have to do better than that to get to an equal protection argument. Individuals with highly price-elastic demand for patent protection are not likely to constitute members of a suspect classification.

  20. 57

    it just seems unfair that the PTO or any government agency would allow their richer clients to move to the head of the line simply because they can afford to pay the $4000 fee

    This is a joke, right?

    Just about any adult can get a credit card. All you have to is breathe and the banks will “innovate” a credit line for you. $4,000 degbt is nothing. Ask someone with a high school degree midway through college.

  21. 56

    Can’t argue with any of that, MM, except PACE is not always much cop, and please don’t send me the US claims and tell me to get them allowed in Europe. I think I will be able to get you more useful ones, if you will give me the chance.

    What intrigues me is the effect in other jurisdictions of the EPO EESR that issues within months of filing at the EPO. Case of mine is on point: EESR cites D1 as a novelty destroyer. 9 months later a USPTO Action cites D1 and a China Patent Office Exam Report cites D1, both with very similar argumentation to that found in the EESR. Something tells me that Examiners in other jurisdictions are avid readers of the EPO files online and, within them, these new-fangled early-issuing EPO EESR’s. What better way to reduce pendency is there?

  22. 55

    All applicants should be entitled to equal access to the public services of our government without arbitrary classification or distinctions. While I’m aware that this usually applies only to protections against discrimination based on race, gender and the like, and that the economic wealth distinction is rarely considered by our courts to be arbitrary, except for certain essential rights like education, voting and criminal defense, it just seems unfair that the PTO or any government agency would allow their richer clients to move to the head of the line simply because they can afford to pay the $4000 fee, while everyone else has to wait their turn. If you believe the PTO’s claim that the other applicants won’t really be disadvantaged by this scheme, I’ve got a bridge in Brooklyn I can sell you.

  23. 54

    MD, yes I meant PPH.

    I don’t have stats. And the EP counsel I’ve engaged have pointed out (rightfully so) that at least with respect to the EPO’s participation it’s more of a political gesture than a recommended course of action. They advise using PACE instead, especially since there is no guarantee in the PPH that the US-granted claims will be rubber-stamped in the EPO.

    As always, the answer depends on what you are trying to achieve. The ideal, of course, is a patent with a range of broad to narrow claims, all valid, covering all possible commercial embodiments and the specific examples/embodiments that you have made and/or are intending to manufacture and sell yourself.

    But sometimes a patent in, say, Mexico has value to a patentee even if the likelihood of asserting it is extremely low. Seems to me in such cases, taking your claims granted in the US and putting them on the PPH in Mexico can save some time and avoid the generation of Office Actions that you might otherwise feel compelled to submit in an IDS (thereby wasting more time and money in your US family).

    As a means of doing an end-around any special difficulties one might encounter trying to obtain claims in the EP, JP or Australia, it might not be worth it. Again, in most of the other “most valuable” jurisdictions, there are means for expediting examination that may serve the client’s interests better than the PPH. Maybe some can fill in the blanks re China because I haven’t looked into accelerating any cases there.

  24. 53

    Ned, you write ” a big discount for the small fry” and I immediately recall something a certain Mr Marx is alleged to have written about “To each according to their needs, and from each according to their ability to contribute”. But that’s not what you are getting at, is it?

    Who would decide the appropriate percentage for the discount, for any particular needy individual claimant? We, the people, perhaps?

  25. 52

    Mark, good point.

    What they need is a big discount for the small fry just to keep the playing field even.

    But if the principle holds, why not just let us take direct action with examiners as well? Pay them some gold in exhange for prompt action or “better sevice” overall. They would appreciate it, I’m sure.

  26. 51

    So what happens to all the patent accelleration programs now in place there just dumped? What about indegent appolicants clearly this program will stiffle inovation by driving up costs to those who can least afford it. Accelleration should be granted based on the significance of the application and weather it is a marketable product. Dont they realize small businesses cant get a loan to startup until they recieve a patent. Assesing fee increases on already issued patents that are making significant money is the way to generate additional revenues not this plan although its just what you would expect from a big business corperate attorney like Kapos. All for big business and tuff luck little guy.

  27. 50

    Malcolm when you wrote P2P you meant PPH, right?

    Do you have any stats? It is my experience in “predictable” engineering fields that claims optimal for the USA are sub-optimal everywhere else and vice versa (112/6, for example), and that the definition of the prior art and the obviousness issue is so different in the USA than without it, that PPH is not interesting. Is your experience in chem/bio different?

    For me the “Highway” is not an Interstate. More like a faint track over complex territory, difficult to discern even for a professional tracker. But persuade me otherwise, do.

  28. 48

    Cost. If there are people using the invention, it is obviously worth the investment to prosecute it. If noone ever uses it, the idea was a dead end. Let is drop.

  29. 47

    In short, pingaling, your comment makes no sense

    Um, no.

    Yet, instead O actually participating we had the likes of Sunshine chasin windmills on mere blog comment pages and be otchin to hishearts content.

    What part of this comment dont make sense to you?

  30. 46

    This program is much more like the Green Technology program than PPH or P2P. The only real difference is the higher price. The rules limiting claim numbers in this new acceleration program are a bit more generous than the Green Tech program. Of course, there are no requirements with respect to the subject matter of the claims.

    Nobody has registered any serious complaints about the Green Technology program not working. The only problem with the program that I can recall reading about is that not enough people were taking advantage of it so the PTO relaxed a few of the requirements.

    By the way, with respect to P2P, that seems to be a fine way to get quick patents in participating foreign countries, especially if you’d accelerated in the US and you were happy with the US claims (or if you had a favorable ISR/WO).

    In short, pingaling, your comment makes no sense. But we all know why, don’t we?

    DAAFR

  31. 45

    Why are you concerned? Are you operating under the misunderstanding that somehow this payment is for guaranteeing you an allowance? Because it’s not. Your payment is simply getting you an examination faster than you would get without the payment.

  32. 44

    I guess you’ve never had a passport expedited. Oh the humanity!!!!!

  33. 43

    Me, I only want to protect my invention from a potential 3rd, 4th, and 5th etc. infringer. I’ll roll the dice before requesting examination, it will save me a whole $600.

    Once the first 4 actors are sufficiently using my invention, that’s when I strike, incur all the prosecution costs in addition to my already acccrued filing costs and hope to obtain the honor of preventing those late moving 6th, 7th, and 8th etc. infringers from using my invention.

    And so why do this?

  34. 42

    On its face, this new rule from PTO seems to violate the equal protection clause of our constitution.

    Gee, Mark, I’d like to hear more on this theory, along with the name of your consitutional law teacher.

  35. 41

    George, only two years?

    We should hear from some examiners onthe projected delays for RCEs since they been done reclassfied.

    6, ya wanna lead teh response team?

  36. 40

    If this program works as advertised

    Lolz.

    The exact same thing was said about PPH and P2P. Yet, instead O actually participating we had the likes of Sunshine chasin windmills on mere blog comment pages and be otchin to hishearts content.

  37. 38

    I am also concerned that the final disposition in most of the these cases is going to be a final office action. I’d like to know if an RCE would be available at that point. Problem with an appeal is that there is currently something like a two year wait at the BPAI.

  38. 37

    So, will this program get anywhere near the levels of success of the earlier headline-grabbing imaginative initiatives PPH and P2P?

    If this program works as advertised, it would be greatly preferable to either of those initiatives, at least as far as US applicants are concerned.

  39. 36

    The USA’s expeditions into Afghanistan and Iraq are finally paying dividends, as our government is now trying to emulate the Central Asian way of providing government service. As the golden rule says: ‘He who has the gold makes the rules.’ This track I process smacks of institutionalized bribery; pay us money and we’ll get to your case sooner than everyone else’s.

    On its face, this new rule from PTO seems to violate the equal protection clause of our constitution.

  40. 35

    pingaling that’s what I meant by “not allowed” – such drops you out of the program. To say that they are allowed but ya get kicked out is the same as “not allowed in that program.”

    Filing an RCE does not “drop you out of the program.” As Jules noted, the program is effectively over once the final disposition is mailed.

    Poor pingaling. He’s probably still wondering why he was “kicked out” of the Justin Bieber concert, along with everyone else, an hour after it ended.

    Once again: DAAFR.

  41. 34

    “And let me tell ya all, I be too lazy ta carry this whole website.”

    How we all wish that were actually so.

  42. 33

    So, will this program get anywhere near the levels of success of the earlier headline-grabbing imaginative initiatives PPH and P2P? From this thread, I’m getting the feeling that it won’t. What is important (I suppose) is that the Federal Government can continue to argue to the media that it is energetically, sensitively and creatively responding to the demands of its customers.

  43. 32

    $4k for the fastest Final Office Action in the World!
    The PTO is gonna love this scam…as the Examiners!

  44. 31

    You’re like that one sad little kid on the playground that nobody will talk to.

    I wonder why.

  45. 30

    Sometimes you have to pay more for less. It makes sense if you dont think about it

    Let’s see if I have this straight. Under this program, I pay a little extra and I get to a first “final” disposition in less than a year, perhaps two years sooner than in the normal track. After that, my application is treated just like any other. Unless the PTO has a secret plan for adding back two-year delays after that first final disposition, it sounds like I’m getting more for my money, not less. But then, I actually thought about it.

    Man, for a guy who don’t do answers, you sure be gettin a bunch wrong lately.

  46. 29

    Me quoting me:

    “Sometimes you have to pay more for less. It makes sense if you dont think about it”

    sorta like wtvlfdt. By the by, have ya decided to add anything of substance to the threads I done ask ya about?

    yeah – thought so.

  47. 27

    however, would not be accorded special status … after the filing of a request for continued examination

    Sorry – that’s what I meant by “not allowed” – such drops you out of the program. To say that they are allowed but ya get kicked out is the same as “not allowed in that program.”

    I also love the comment that I done seen somewheres that Lord Kappos basically said that there will be a de facto final decision at the critical period – no matter if that means a simple final rejection whether the case merits it or not.

    Look forward to paying more for such increased “high quality.” Like I done say – this one is a turkey. from the cell phone commercial – “Sometimes you have to pay more for less. It makes sense if you dont think about it”

  48. 26

    You’re making a mistake in thinking that ping would actually read something before shooting his mouth off. He prefers to just read Patent Hawk’s summaries, mistakes and all, and just go with that.

  49. 25

    RCEs and Appeals are “allowed” in the program, but the program is simply not intended for people to file RCEs. In fact, they are discouraged.

    Page 18401, paragraph beginning at the bottom of the first column, defines “a final disposition” to include among other things, Final Rejection, Notice of Appeal, and RCE. As long as thier is a final disposition “within twelve months of prioritized status being granted”, the the office has fulfilled its end of the deal. Further, it makes clear, “An application under prioritized examination, however, would not be accorded special status … after the filing of a request for continued examination”, meaning prosecution could be delayed.

  50. 24

    Jules,

    Does that have anything to do with the fact that in this program RCEs and Appeals are not allowed?

    Seems like a grand case of paying more to get less. Did they model that guy in the phone commercials after Kappos? (Sorry Lord K – this one is a turkey)

  51. 23

    “What tools will the examiners and attorneys have to make it take 2+ years anyway?”

    There’s a statistical magic trick called an RCE for that.

  52. 21

    Where’s the ESD requirement to milk applicants for profits? What tools will the examiners and attorneys have to make it take 2+ years anyway?

  53. 20

    Max, I suppose you too simply did not understand the caveat: During the period of deferral, anyone could begin infringing and by that act would receive intervening rights, essentially receiving a nonassignable, royalty-free license under any patent that may eventually issue.

    Thus, allowing an application to pend in the patent office without examination invites people to use that the subject matter without later compensation to the patentee. Essentially, the patent owner would be dedicating his patent to the public until and unless he actually had the patent application examined and granted.

  54. 19

    Ned how about the dampening effect on investment in new technology, caused by all those pending cases? I had supposed that people in the USA were afraid of infringing. If you do not know what claims will issue, but imagine the worst case, does that not frighten off would-be investors. Isn’t it better that all apps go to grant or refusal quickly. recall the cut-off period of 4.5 years in UK. If you haven’t brought your app (and any divisionals on it) through to allowance by then, it dies. Why has the UK had this provision since at least 1949?

  55. 18

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  56. 17

    There is a whole big raft of reasons peculiar to the EPO why so few ask for (fee-free) expedited examination. First up, annual maintenance fees paid during pendency to the EPO are an awful lot cheaper than paying post-issue annuities to each one of up to 38 national Patent Offices where the owner has validated the EPO patent on issue. Again, why go to issue before I know what product the competitor is launching. Better on the back burner till I can see the product and sculpt the pending claims to nail it, perhaps also in a speedily issued Gebrauchsmuster Abzweigung even while the app is still pending in the EPO.

  57. 16

    The United States Patent and Trademark Office (USPTO) today announced new details on its “Three-Track” program designed to enable applicants to choose the speed with which their patent application is processed. On February 4, 2011, the USPTO will publish in the Federal Register a notice of proposed rulemaking on “Track One” of the program, which will give applicants the opportunity for prioritized examination of a patent within 12 months of its filing date for a proposed fee of $4,000.

    U.S. Commerce Secretary Gary Locke highlighted the “Three-Track” patent examination program, first published for public comment in June 2010, at the White House’s launch of the “Startup America” initiative earlier this month.

  58. 15

    I think you missed the point about intervening rights. Obviously that’s going to have to require some legislation to implement this proposal.

  59. 14

    deferred examination makes it even more difficult for competitors or potential competitors to figure out what they new products they can make/use/sell/import

  60. 13

    chuckle-worthy

    Whoda thunk that Ol Sunshine would be copying my phrases?

    Well, I sure wish NAL was here – what was her phrase – Malcolmy fingerprints ?

    NAL gone, now my main man IANAE noweheres to be seen (approaching a flippin MONTH).

    Sides my own fab style, thes pages are gettin a bit bland. And let me tell ya all, I be too lazy ta carry this whole website. Next ya know, eventhe Eskimo will get higher rankings than here.

    Oh wait, they did.

  61. 12

    6, I don’t read Patent Docs regularly because the incessant Big Pharma lobbying gets on my nerves. Plus, it was easier to just look up the USPTO regs than to find the post.

    The answer: excess claim fees not covered by the $4k (nor are other fees that are required for examination). Also no multiple dependent claims are allowed.

    Reading the comments in the Notice was quite chuckle-worthy. Let’s just be frank: the prosecution bar is filled to the brim with whiners who will never, ever be satisfied. I’m guessing most of these folks are well into their fifties. You know, the folks who came of age during the nadir of the practice.

  62. 10

    I’m sorry, track III has a 30 month time limit so you cannot defer indefinitely.

  63. 8

    “Will there (also) be a way to identify which issued patents were “Track One”; w/out having to read every issued patent?”

    You can ask the PTO for the data but they might not tell you individual patent numbers.

  64. 5

    Application may contain no more than four independent and thirty total claims

    Does the $4,000 include all claim fees up to this limit? Are multiple dependent claims allowed (they are not allowed under the other accelerated regimes).

  65. 4

    Dennis–Do you know if there will be some way to (quickly & easily) identify which apps have been successfully slotted into Track One? Will some type of searchable “tag” be applied for such (public?) tracking purposes?

    And what part will 18-month publication play in such identification?

    Will there (also) be a way to identify which issued patents were “Track One”; w/out having to read every issued patent?

    How can non-Office folks see how well the program is actually working?

  66. 3

    Thanks for this update on the fast-track program, Mr. Crouch. Patently-O is a consistent source of patent-related information for me. Sometimes it’s all I have to read to stay updated. So additional thanks for all the time you spend on the web site.

    Sincerely,
    Mark Terry

  67. 2

    Perhaps after May 4 there will still be value in a small entity (or a large entity for that matter) considering filing a PCT application (e.g., ISA/KIPO $2764 or ISA/US$3687 – for an internatioanl application less than 31 sheets) as their first filing – to receive a search report and written opinion in 9 months (ISA/KR). Then, by the tenth month from the PCT filing, and based on the written opinion, a US non-provisional patent application (national stage entry or bypass) may be filed having claims (possibly more than four independent claims/ 30 total claims) found patentable by the ISA examiner – and include the PCT-PPH (no fee) request/petition. Although the final US disposition may be a bit more than 12 months, this path might shave from $313(ISA/US) to $1236 (ISA/KR) in total overall filing fees from Track I, and gives the applicant a search report in nine-months (ISA/KR) – with unity of invention applicable (national stage entry) versus US restriction practice (bypass) in a subsequent US filing.

  68. 1

    Now the PTO needs to add a deferred examination scheme to accommodate low priority cases. Let’s have a filing fee paid on filing, but search and examination fees deferred until the applicant requests examination.

    I would place no time limit whatsoever on how long the application can stay pending without examination, but I would accord intervening rights to any who begin using the subject matter of the eventually patented claims during the period of deferral.

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