by Dennis Crouch
The USPTO has two traditional functions: (1) quality examination to ensure applications satisfy the demanding statutory requirements of patentability; and (2) timely and efficient processing of those applications. Recent data suggests the Office is struggling with the second of these mandates, as reflected in a sharp uptick in Patent Term Adjustment (PTA) awards. [Charts below]
Under 35 U.S.C. § 154(b), Congress established a framework guaranteeing patent applicants certain timeline benchmarks, with additional patent term granted when the USPTO fails to meet these examining deadlines. The statutory scheme reflects Congress’s judgment about appropriate examination timelines while maintaining the balance between thorough review and efficient processing.
The PTA system primarily serves as a compensatory mechanism for applicants, but it also represents a congressionally mandated metric for USPTO performance. When functioning optimally, the percentage of patents requiring PTA should be minimal, reflecting efficient processing that meets the statutory timeline expectations. The recent uptick suggests systemic issues that merit attention from USPTO leadership.
After years of improvement following the massive examination backlog of the early 2010s, the trend lines have reversed. The average PTA award has increased sharply over the past year, rising from about 250 days in early 2022 to 375 days for recently issued patents (October 2024). Similarly, the percentage of patents issuing with some PTA award has climbed back above 50%, after hovering around 45-48% during 2018-2022.
To understand these trends, it’s worth reviewing the statutory framework. Section 154(b) provides three basic guarantees to patent applicants:
- Prompt USPTO responses (14-month deadline for first office action; 4-month deadline for subsequent USPTO actions)
- No more than 3-year application pendency (prior to either issuance or RCE)
- Adjustments for delays due to interferences, secrecy orders, and successful appeals
The current uptick appears primarily driven by first-action delays and overall pendency issues — with the largest increases for applications receiving 1-3 years of additional PTA.
While today’s situation is not nearly as dire as the 2010-2014 period, when average PTA exceeded 600 days and over 70% of patents required adjustment, the reversal of previous improvements demands attention.
Looking ahead, the key question is whether this represents a temporary deviation or signals a more persistent challenge requiring structural solutions.
