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Accelerated Examination of an Already-Filed Application

Posted Wednesday, September 12, 2012 by Mike Gibbons

As I previously wrote here, it is possible to accelerate the examination of a patent application by the USPTO through a relatively new program called Track I acceleration. By paying a program fee, examination may be accelerated such that either an allowance or a final rejection is issued within a year of filing. And, if the applicant receives a final rejection, further examination of the application may continue in an accelerated manner by filing a Track I RCE request.

Without accelerating an application, the normal timetable is that the application will be in line for an examination for 18 months to 2 years, give or take a couple of months. Once the USPTO takes a first look at an application, it can be another 18 months or so before a patent issues while patent prosecution takes place, increasing the total pendency of the application to three to four years.

From an inventor’s perspective, a lot can happen during that three to four year wait. In certain technological areas, that could be several iterations of a product line, or could be enough time for a competitor to come out of nowhere while the inventor waits for the patent rights to accrue. Track I accelerated examination may be very desirable in such circumstances.

What happens if the application was originally filed without a Track I request, and then changing market conditions dictate the inventor get an answer on the patent application sooner rather than later? May Track I be entered after the application has been filed?

Unfortunately, no. A Track I request must be made, and the associated fees paid, on the day the application is filed. There are alternatives, however. If the application is already in prosecution (in other words, if the USPTO has issued at least a first substantive Office Action), a Track I RCE request may be filed for the application. This option is not available before an Office Action issues though.

Another possibility is to re-file the original application as a continuing application, and file a Track I request for the continuing application. That would mean two applications would be pending and another application filing fee would be required, but the later-filed application would be on Track I and receive an examination within three months of filing.

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