Author: Matthew J. Hlinka
Editor: Adriana L. Burgy
What is Track One?
Track One expedites the examination of a patent application. Once granted, the USPTO strives to reach a final disposition within 12 months.
When can Track One be used?
A nonprovisional utility or plant patent application filed on or after September 26, 2011, is eligible for Track One as long as it:
(A) has no more than four independent claims,
(B) no more than thirty total claims, and
(C) no multiple dependent claims.
Both first filings and continuing applications are eligible for Track One. Reissue applications, however, are not. But applicant beware – Track One status will be lost if:
(1) applicant petitions for an extension of time;
(2) applicant files an amendment that contains more than four independent claims, more than thirty total claims, or a multiple dependent claim;
(3) applicant files a request for continued examination (RCE);
(4) applicant files a notice of appeal;
(5) applicant files a request for suspension of action;
(6) a final Office Action is mailed;
(7) the application is abandoned; or
(8) examination is completed under 37 C.F.R. § 41.102.
Track One requests must be filed electronically through EFS-Web (plant patent application requests must be field in paper format). And, Track One is not free; standard filing fees must be paid and additionally, there is a Track One prioritized examination fee of $4000 ($2000 for small entities or $1000 for micro entities), and a Track One processing fee.
There is a limit of 10,000 granted requests for Track One per fiscal year. The USPTO’s fiscal year runs from October 1st through September 30th. Although this cap has not yet been hit in Track One’s relatively short history, requests are on the rise. With the number of Track One requests expected to crest 9,000 in fiscal year 2015, the cap may become an issue in coming years.
Why use Track One?
The Track One prioritized examination fee is a substantial sum, but the reduced pendency time is also significant. While the average patent pendency for a standard application is about 27.4 months, Track One applications reach final disposition an average of 7.8 months from filing. Track One applications are also reviewed much earlier, with a first Office Action mailed an average of about 3.4 months after filing, compared to about 18.4 months for standard applications. If speed is the goal, Track One is a great option.
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