Patent protection is a crucial element in developing and commercializing an innovative product. However, as the speed of technological development has continued to increase, the process of obtaining patent protection in the United States has historically lagged, risking companies’ ability to introduce cutting-edge technology to the market in a timely manner. The United States Patent and Trademark Office (USPTO) recently introduced Track One prioritized examination, which may be the most effective way to quickly obtain US patent protection for paradigm-shifting technology.
New Patent Timelines Expedite Innovation
Statistically, under standard USPTO procedure, receiving a final disposition in a patent application examination process generally requires more than twenty-four months from the date of filing, while the average time for the USPTO to issue a patent is around thirty-two months. To improve examination timing of patent applications, on April 4, 2011 the USPTO introduced the Track One prioritized examination procedure.
The USPTO Track One procedure implemented the prioritized examination track codified in 45 U.S.C. 41(h) of the Leahy-Smith America Invents Act (AIA). The stated goal of the AIA prioritized examination track is to provide applicants greater control over the examination timing of domestic patent applications, and to promote greater efficiency in the examination process.
Track One specifically provides applicants with an opportunity to expedite examination of their non-provisional utility or plant patent applications upon payment of appropriate fees and compliance with certain requirements. Track One also accords special status to a qualifying patent application without requiring a pre-examination search. Procedurally, Track One places the application on an examiner’s special docket throughout the entire prosecution of the subject application until a final disposition is reached in the application. Additionally, Track One promises final disposition of the application within an average of twelve months from the date of its filing. The current Track One fee is $4,800 for large entity applicants and $2,400 for small entities.
Track One Grants Progress Inc. Patent in Nine Months
Our client, Progress Inc., owns groundbreaking Artificial Intelligence (AI) technology in the area of neural networks. Progress Inc.’s neural network technology promises a greater than 200,000 times training speed advantage over existing neural networks. In September of 2015, we filed a Track One “Neural Network and Method of Neural Network Training” US bypass continuation application of a previously filed Paris Convention Treaty (PCT) application for Progress Inc. Within three months and two weeks of filing, we received a First Office Action in the bypass continuation application from the USPTO. Following an in-depth telephone interview with the USPTO examiner, and within six months and three weeks of filing, we received an allowance, or final disposition, in the application. Then, only nine months after filing of the bypass continuation application, the USPTO granted the US 9,390,373 patent protecting Progress’s cutting-edge AI technology.
In June of 2016, subsequent to the allowance in the above “parent” bypass continuation application, we filed a second Track One application for Progress Inc.’s technology. We strategically configured the second Track One application as a continuation-in-part (CIP) of the parent application. Identifying the second Track One application as a CIP had the added benefit of putting the new application on the docket of the same USPTO examiner as in the parent application, thus utilizing the examiner’s familiarity with Progress Inc.’s technology to further expedite examination of the CIP. The examiner contacted us by telephone around five months from the date of filing of the CIP application to discuss new disclosure, and the USPTO issued an allowance in the application only three weeks later. Accordingly, we received a final disposition in Progress’s second Track One application even faster than in the parent application.
The expedited twelve-month final disposition timing promised by Track One examination is undeniably a significant improvement over the standard USPTO procedure. Yet, the above-described experience with the two Progress Inc. AI applications indicates that Track One, combined with a strategic approach to filing, may, in fact, permit novel and commercially important technology to be patented even faster.
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