USPTO First Action Timing

FirstActionTimingI created the histogram above from the USPTO’s own art-unit first action estimator data.  The estimate for most art units is <18-months, but a handful report a 60-month expected delay.





55 thoughts on “USPTO First Action Timing

  1. 9

    Thanks for creating this histogram. It is good to know that the estimate for most art units is less than 18-months.

  2. 7

    Obviously there’s math involved … but what are the inputs what weight is each input given by the PTO’s magical “estimating machine”? e.g., is one of the inputs “time elapsed from filing to first OA in most recently mailed first OA in specified art unit”? Or what?

    1. 7.1

      Yeah, I’ve had the estimated wait come back on a case at 39 months, only to have an OA come within a month. I know there are lots of variables and unknowns, but it is helpful in a very broad, generalized way.

  3. 5


    Three Branches, Executive, Courts, Legislature.

    Assume Marbury v. Madison.

    Can congress by law allow the executive to regulate/take/revoke private property in defined cases and exclude the courts from reviewing whether the executive is operating with the scope of its authority?

    If yes, please explain.

    1. 5.1

      Yes to the former I believe in cases where the “private property” is a creature entirely of statute created by the congress itself. No to the later, gotta have the courts be able to review I’d think.

      1. 5.1.1

        The problem with your position 6, is that – like voting rights – once created, the property (or right) is simply not “free” to be abrogated of any constitutional attachments.

        You simply cannot say “well, it was entirely created by statute….”

        (and I do note that your position here seems to seek to avoid the entire public/private discussion)

      2. 5.1.2

        6, all land in the US is “owned” originally from government grant via patent. I trace my land to a patent issued by the King of Spain.

        Per your formula, since land flows from a government grant, it can be taken/regulated/revoked by the executive without the courts having a say so of Congress so ordains?


            What if the US (by an accident of GPS) issues Ned a government grant via patent for some land partially in Canada?

            Eventually the US would realize it was a mistake and revoke the part of the grant pertaining to Canada.

            Similarly when the US realizes it issued part of a patent by mistake.

            Eventually the US revokes the part of the patent which was issued by mistake (for example issued by an inattentive patent clerk).


          “6, all land in the US is “owned” originally from government grant via patent. I trace my land to a patent issued by the King of Spain.”

          MMMMMmmmm, yeah we don’t really call “land” something that is created by statute. It will exist regardless of any statutes.

      3. 5.1.3

        6, do you agree or disagree that inventions are creations of inventors and as such are his or her property?


          Careful Ned – you risk missing the difference between an inchoate right that is naturally the inventor’s, and the different right obtained by and through the authority of that single one branch of the U.S. Government per the authority of the constitution, the true Highest law (and not the Judiciary, which is not above that highest law).


            anon, actually, invention rights are natural rights that are today somewhat protected under trade secret laws. If it were not for the Statute of Monopolies in 1624, common law would have developed and recognized the protection of new inventions not only for “misappropriation,” but also against copying. As copyright recognizes independent authorship, I think that common law patent rights would have stopped at copying. Thus all the statutory patent remedies bring that the common law remedies would not is a right against independent developers.


              You dive deep into the weeds in your attempt to cloud the purely statutory US nature of the patent property.


                Cloud? Trade secret law does exist and is a form of common law protection of new and useful technology.

                Patents only provide protection against non misappropriators in exchange for disclosure of the otherwise protectable property in the trade secret/invention.

                Trade secret protection was not recognized in 1790. It developed in the mid-1800s. But it does suggest, and strongly so, that inventions are protectable at common law against misappropriation and probably against copying.

                1. As I recall, you like totally missed the boat on the concept of inchoat when someone tries to explain the race analogy to you…

                  You have a real issue with this whole statutory and proper branch of the government thing Ned.


          I disagree with the idea that a property right in an invention exists outside a statutory framework (i.e. I do not believe in the natural right to inventions).

          Note: I distinguish trade secrets because it is a right to the secret, not the invention (you cannot exclude someone from practicing the invention is they discovered it independent of your secret).


            (secrets also do not have to be novel, nor are they – per se – covered by the constitutional clause)


              anon, they do have a form of novelty, the same as in the 1790 patent act — not publicly known or used.


                Not true Ned – the items that make up a trade secret can be fully known – but not appreciated.


            Ordinary, what you really disagree with is that publicly disclosed or publicly used inventions can be protected by common law.

            This does not mean that secret inventions cannot be sold. They can. This is what is known as trade secrets and know how.


          “6, do you agree or disagree that inventions are creations of inventors and as such are his or her property?”

          They are only property in so far as a statute decrees them to be such. In other words, “patent property” is entirely a creature of statute.

    2. 5.2

      ^^^ what possible tangent does the post string starting here at 5 have to do with the topic of the thread?

      I wouldn’t mind so much really, but Ned has consistently run away from simple points of law put to him on his little “pet” topic, raising the specter of drive-by monologuing without any real desire for a dialogue.

      1. 5.2.1

        You mean the same as Martin Snyder and MM? Don’t they both do that, too?


          Careful there PatentBob,

          That type of purely objective critical thinking can get you into trouble.

    3. 5.3

      If a certain class of private property is solely obtained by an executive grant, is it proper for the executive to subsequently make a determination that the grant was made improperly?

      1. 5.3.1

        Your “obtained by” is a misnomer as the executive is not writing the law through which the property is created.

        Let me know if you need help in identifying the single branch of the government with that authority (and Ned can fill you in on scire facias).


          Which verb do you think works better there? One does not obtain a patent unless a patent is granted by the PTO. Ones does not obtain a patent from Congress. Congress writes the law that gives the PTO the authority to grant patents. One does not obtain a patent from the Judiciary.


            The legal authority of the property has its origin with Congress.

            The PTO has no authority of its own to grant patents. If Congress tomorrow revoked patent laws, the PTO would do what exactly in your world view?

            Your “ordinary” sense of law might be getting in your way here.


              I think we are talking past each other a little bit.

              The legal authority of the property does have its origins with Congress. If patent law was revoked by Congress, the PTO would fold.

              Congress shapes the contours of the property. One of the things Congress could build into the contours of the property is that the grant of the property is reviewable by the agency Congress gave the authority to grant it in the first place. Is it really a revocation of a property right if the mechanism to cancel improper grants is built into the legal authority of the property as designed by Congress?


                You use the word “should” in a most telling manner – and the reference I made to Ned telling you about scire facias has to do with the fact that what you want was once there and that Congress removed that path.


                Ordinary, Congress does not have the authority under the constitution to grant anything other than exclusive rights for a limited time. If the PTO could unilaterally revoke a patent at any time, the grant really is not for exclusive rights for a limited time, but for no time at all.

                Marbury made this distinction — between a commission revokable at will and a commission that had a fixed term. The latter were property and could only be revoked by the courts.

                1. I see what you are saying. I totally agree that a decision to revoke a issued patent should be reviewable by the Judiciary.


            Ordinary, one can obtain a patent from the courts. If the Director finally refuses to issue a patent, the applicant has a right of de novo review in court — the result of which is a court order to the Director to grant the patent the court orders to be granted.

            One cannot but wonder why Congress allows a court to review de novo the refusal to grant a patent by the director but the director’s decision to revoke.

            One would think that the law would provide exactly the opposite.


              Should read, “but not the director’s decision to revoke.” (I’m getting a lot of phone calls today.)


                I almost put an asterisk on the “One does not obtain a patent from the Judiciary” part.

                I see your point that a decision to revoke being unreviewable is odd and out of place.

      2. 5.3.2

        Mr. Squirrel, see the answer to 6 above. In the US, most if not all land was owned by the King and granted vial patent to owners. My own land came from the King of Spain.

        As such, the King can revoke the grant without the courts having a say/

        I would suggest that a right revokable by the granting authority is not a right at all.


          You make an interesting point. It seems that every fix made increases the uncertainty for one side or the other.

          I agree that a decision to revoke a grant of a patent should be reviewable just like a decision not to grant.

    4. 5.4

      Let me remind the inevitable conclusion of your question that these are applications for a patent…no property right has been assigned or granted at this point.

      1. 5.4.1

        (hence my reminding Ned of the concept of inchoate rights)

        It’s a concept that he has struggled with like forever.

  4. 4

    The chart title threw me. I was expecting an ordinate of Art Unit Numbers, not one of Numbers of Art Units.

    1. 4.1

      That too would be an interesting graph – throw in some “sensitivity” analysis for how the time per art unit may have been changing over time and you have some possibility for good insights – at least as to how the Office is acting perhaps inconsistently between art units.

  5. 2

    what is time to first OA for applicants who did not file for accelerated examination?

  6. 1

    Dennis, could you provide some further information identifying some of the AUs on the tails and (especially) the technologies they handle?

      1. 1.1.1


        Do you have a link for us lazy folk?

        It would be interesting to see a time-lapsed graph of this data, from pre-Tafas to present.


            Thanks Jasf, I was aware of the estimator tool itself and was hoping for the really lazy full compilation Excel format results of all of the art units already run.

    1. 1.2

      Yeah, software, business, and pharma mainly. When you see how far some attnys push the “ladder of abstraction” you can see why it takes so long to get to them.

      1. 1.2.1

        Some attorneys push…?

        Do you know what the term even means?

        Do you know that your “some attorneys” are like more than 95% of all attorneys? You seem stuck on some type of explicit picture claim mentality…

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