How Long Does It Take to Get a Patent?

Rich Goldstein

Founder & Principal Patent Attorney
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HOW LONG DOES IT TAKE TO GET A PATENT?

Wondering how long does it take to actually get a patent? The truth is, how long it takes to get a patent will depend on a number of factors.  Some of these factors are in your control, while others are not. 

How Long Does It Take to Get a Patent?

The United States Patent and Trademark Office often can take a long time to review and ultimately approve a patent application. Even before you get to the government agency, however, the work necessary to complete up front before you even file the application can be time consuming and laborious. Expect that it will likely take several months to get your patent application filed from the time you start the process with your patent attorney.

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Overall Time Frame It Takes to Get a Patent

The average time it will take to get a patent is 22-30 months from the date you file your patent application. The current average time is 24 months. This time frame will range depending on the type of patent you are seeking and the level of complexity behind your patent. 

Even before you file your patent application, however, preparing for and then drafting your patent application can also take a significant amount of time. 

Time Frame for a Patent Depending on Type of Patent

First, how long it takes to get a patent will depend on the type of patent you are looking to get. There are two main types of patents:

  1. Utility; and
  2. Design. 

A utility patent protects the way something is used and works. A utility patent prohibits others from making, using, or selling your idea without your authorization. 

A design patent protects the way something looks. This includes the shape and configuration of something, as well as the surface ornamentation that is applied.  In some cases, a design patent can protect both the shape and the ornamentation. 

Utility patents typically take longer to get than a design patent. One reason why utility patents take longer than design patents is that utility patent applications are more difficult to prepare and will take longer to get filed. 

A second reason is that lately, the examiners at the Patent Office who review design patents have less of a backlog of applications to review. 

A third reason is that once the patent application is reviewed, the examiner may have an issue with the patent application.  Issues for design patent applications are generally easier to resolve, and thus it is more likely that a simple response will then result in approval of the design patent application.

Time Frame for a Patent Search

Before even filing a patent application, there are important steps that need to be taken to make sure that seeking a patent for your invention is a good idea. This will impact how long it takes to ultimately get your patent. One of the first of these steps is to conduct a patent search

You can conduct your patent search within the United States Patent and Trademark Office’s various patent databases. Conducting your own patent search can take anywhere from one week to a few weeks depending on the time and energy you choose to devote. 

The United States Patent and Trademark Office has a great video that walks through a step-by-step strategy for conducting a patent search.

It typically is a good idea to consult a patent attorney about conducting a patent search, and most likely, getting a patent attorney to conduct patent searching for you. Patent attorneys are much more experienced with the databases, and will better understand the impact of what is found in the search on your prospect for getting a patent. 

Attorneys can sometimes find things you might have been unable to on your own. They can also provide you pointers for further searching on your own.

Patent searches conducted by patent attorneys can take between one week and four weeks. This will depend on the type of patent you are seeking and how many claims you are looking to submit within your patent application. 

The more claims that are contained within your application, the more time it will take to conduct patent searches because each claim will need to be thoroughly researched. 

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Time Frame to Draft Your Patent Application

Once you have conducted your patent searches and confirmed that your invention has not already been patented, the next step is to draft your patent application. The time it takes to draft your patent application will depend on the type of application you decide to file. 

Provisional Patent Applications

A provisional patent application is an informal patent application that allows you to claim patent pending status. It allows you to file an application with somewhat less detail. Because of this, provisional patent applications are typically easier to draft and therefore do not take as much time as non-provisional patent applications. 

Provisional patent applications are not reviewed by the United States Patent and Trademark Office on their merits. This means a patent examiner will not be assigned to your provisional patent application

It also means you won’t have to respond to Office Actions from the Patent Office about your application. Office Actions can often involve lengthy questions and requests for additional documentation and explanations. 

Provisional patent applications will typically take less time to draft. This will depend on how researched and developed your invention is at the time the application is drafted, the complexity of your invention, and the number of claims you are looking to include in the application. 

Provisional patent applications are helpful because they reserve what is referred to as your “filing date”. Your filing date reserves your priority over the patent. Having the earliest possible filing date is important because the United States operates under a “first-to-file” system. 

first-to-file system means that the first inventor to file for a patent has priority for that patent. By filing a provisional patent application, you will preserve an earlier filing date for your patent.  

Non-Provisional Patent Applications

A non-provisional patent application is the formal patent application submitted to the United States Patent and Trademark Office for your invention, which means your invention is patent pending

A nonprovisional patent application must include the following things:

  • Application Transmittal Form or Letter;
  • Specification, including a description and a claim or claims; 
  • Drawings, when necessary; 
  • Oath or declaration; and
  • Required filing, search, and examination fees.

Because of these specific requirements, non-provisional patent applications take a longer time to complete than provisional patent applications. Of course, as with provisional patent applications, the time frame it takes to complete non-provisional patent applications will depend on your invention’s complexity and claims numbers. 

Time Frame for United States Patent Office to Issue the First Office Action

Once you have filed your non-provisional patent application with the United States Patent Office, it will typically take 15 months before you get your first office action. The United States Patent Office website posts current wait time statistics

In these 15 months before your first office action, your application will run through multiple individuals who assess its specification and diagrams to determine the particular “art unit” with the Patent Office to send your application. Once your patent application lands in an art unit, it will be assigned to a patent examiner. 

Once received by the examiner, the patent application will wait in line before other applications that were received earlier. When it reaches its turn for review, the patent examiner will substantively review your patent application and issue the patent application’s “first office action”. Office actions have two functions:

  • To inform the applicants which parts of the application are allowable; and
  • To identify all deficiencies in the applications that need to be addressed by the applicant. 

Time Frame for Prioritized Examination

You can speed up the Patent Office’s typical 15-month review process to the first office action for utility patents, but it will cost you. The United States Patent Office offers prioritized examination, which it refers to as “Track One.” Track One provides you with a final disposition for your patent within 12 months of filing your non-provisional patent application.  

Track One is available for utility patents on a limited number of applications each year. Specifically, they allow 12,000 applicants per year. Track One does cost a significant fee to obtain: it costs $1,000 for micro-entities, $2,000 for small entities, and $4,000 for non-small entities. 

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Time Frame for Response to Office Action

Once you have received an office action from the patent examiner, this does not mean your patent application process is over. Instead, you have the opportunity and ability to respond to the patent examiner’s office action. 

You will typically have about three months to respond to the First Official Action. You may also be able to obtain extensions. Your response needs to address each and every issue identified by your examiner. 

Time Frame for Ultimate Decision From Patent Office

After you have responded to your first office action, the examiner will likely review the response and take action within the next few months. The next action by the examiner may be a notice of allowance – indicating approval of the patent application. Then, once issuance fees are paid, the patent will be granted in the next few months.

But there may be additional office actions issued by the patent examiner. You are generally permitted to submit a response to these office actions.  Once all office actions and associated responses have been issued and received, the patent examiner may issue the final decision, known as a final office action, or final decision on the merits. Note that a final office action is not really final, in that there are options for continuing the process if you and your patent attorney disagree with the decision.

The timing for this will depend on the complexity of the office actions and your associated responses, and any potential follow up that may need to be completed. 

Importantly, the amount and complexity of your patent claims and the closeness of the prior art will often have a strong impact on how extensive these office actions are and the possibility of success at each round. It will often also impact the overall timeline for your application. 

Given the complexity of most patent application processes, it can be a great idea to engage a patent attorney early on in the process to help guide you through in an efficient and effective manner. 

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