How Long Does It Take To Get A Software Patent?

You’ve developed proprietary software and now you want to protect it. Obtaining a patent is an effective way to accomplish this, but the patent process does take time. According to USPTO data for September 2026, applications took an average of 28.8 months from filing to a final decision (33.6 months when applications that needed a request for continued examination are counted), and about 20.5 months just to reach a first office action. The more technical the invention, the longer the process can take. Despite common software patent myths, there are ways to expedite your patent application which we cover in this article. We’ll also explain the different phases of the patent process and how long each phase takes on average.

Why Does It Take So Long To Get A Patent Issued?

The United States Patent and Trademark Office (USPTO) has a constant backlog: as of September 2026, about 745,000 utility, plant, and reissue applications were waiting for a first examination. Several other factors like office actions, the type of patent application, the complexity of the invention, the type of technology, and the quality of the patent application make an impact on the time to receive a decision.

To provide further clarity, let’s review the three phases of the patent application process and their respective time frames below.

Pre-Filing

The first phase is pre-filing. During this process, you’ll conduct a prior art search and patentability analysis which can help you understand if any similar inventions exist or if you could be infringing on an existing patent. In addition, the patentability analysis will help you determine potential claims to use in your patent application.

Application

It can take 30 to 120 days to prepare your application. The more complicated and intensive your software, the longer it could take to prepare the application. You may be tempted to rush this phase, but this is a mistake. Working with a skilled patent attorney can expedite the patent application process.

Prosecution

Once you submit your application, it can take anywhere from about a year (with prioritized examination) to several years to receive a final determination on your patent application. On average, it takes more than two years.

The length of time can vary based on office actions, the complexity of the application, the applicant’s age and health, and whether or not you file for one of the expedited programs.

How Long Does It Take To Get Patent Pending Status?

The patent pending status starts when you submit your application, provisional or non-provisional. It’ll end when the USPTO either approves or denies your application. Patent pending means your application is on file but no patent has issued yet: you can mark your product “patent pending” to put others on notice, but you cannot enforce a patent until it is granted. A provisional application keeps you patent pending for up to 12 months, and you must file a non-provisional application within that year to keep its filing date. Most applications stay in the pending phase for one to three years. However, software applications often take longer and can stay in the pending phase for more than three years. In USPTO Technology Center 2100, which examines many software inventions, applications averaged 30.8 months to a final decision in September 2026, or 34.4 months counting applications that needed continued examination.

How Long Does A Patent Last?

How long your patent protection will last depends on the type of patent that you obtain for your software. A utility patent remains intact for 20 years from the earliest non-provisional filing date. A design patent will provide you protection for a period of 15 years from the date of patent issue.

The key element to knowing when your patent expires is determining an accurate filing date. There can be several filing dates, so you’ll need to confirm that you have the correct one. If you file a provisional patent before your patent application, you have one year to prepare and file your non-provisional application while your invention is patent pending.

The provisional year does not count against your patent term. The 20 years run from the non-provisional filing date, not the provisional date, so a provisional can push your expiration date back by up to a year.

Previously Filed Patents

The law has changed over the years. If you filed a utility patent application before June 8, 1995, then your patent timeline is calculated differently. Your patent lasts 17 years from the date it was granted or 20 years from the date of filing, whichever is longer.

Another change occurred for design patents. If you filed a design patent application on or after May 13, 2015, then your patent lasts 15 years from the date granted. If you file before this date, your patent lasts 14 years from the date granted.

Options For Expediting The Software Patent Process

As you can see, protection lasts a limited time, and the 20-year term starts running while your application is still pending. If the USPTO causes certain delays, such as taking more than 14 months to issue a first office action or more than three years to issue the patent, you can receive patent term adjustment that adds days to the end of your term, but you still cannot enforce the patent until it issues. For software, speed matters even more. Investors may want to see issued patents, competitors may bring the same idea to market, and the underlying code can have a short shelf life. The faster you can receive your approval, the quicker you can start enforcing or licensing your patent.

There are three main ways to speed up examination of software-related applications.

Prioritized Examination (Track One)

The Leahy-Smith America Invents Act, or AIA, created Track One, which lets you pay an extra fee to have any utility application examined out of turn, regardless of subject matter. The USPTO’s goal is a final disposition within about 12 months. You request it when you file your application or with a request for continued examination. The prioritized examination fee is $4,515 for large entities, $1,806 for small entities, and $903 for micro entities, on top of the regular filing, search, and examination fees. The application can have no more than four independent claims, 30 total claims, and no multiple dependent claims, and the USPTO accepts up to 20,000 Track One requests each fiscal year. Learn more about Track One.

Petition to Make Special

Patent applications are assigned to an examiner and reviewed in the order in which they are received. However, you can file a petition to make special that allows your application to skip the line if an inventor is 65 or older, or if an inventor’s health could keep them from helping with the application during a normal examination timeline. Petitions based on age or health have no USPTO fee. Age can be shown with a statement from the inventor or a registered practitioner, and health with evidence such as a doctor’s certificate.

Petitions used to be available for certain subject matter too, such as inventions that improve the environment, save energy, or help counter terrorism. The USPTO removed those grounds on July 10, 2025, so applicants with those inventions now use Track One instead.

Patent Prosecution Highway (PPH)

This provision applies when you intend to seek patent protection with foreign intellectual property offices. Once one participating office finds at least one of your claims allowable, you can ask another participating office to fast-track examination of the corresponding claims in your application there. The USPTO takes part in the Global PPH and IP5 PPH programs, which include offices such as the European Patent Office and the Japan Patent Office, and it charges no fee for a PPH request. It works in both directions: a U.S. allowance can speed up a foreign application, and a foreign allowance can speed up your U.S. application.

Accelerated Examination (Discontinued)

The Accelerated Examination program, which also aimed for a final decision within 12 months, stopped accepting petitions for utility applications on July 10, 2025. The USPTO cited low use and the overlap with Track One. Accelerated Examination remains available for design applications.

Should You Expedite Your Software Patent Application?

Expediting makes the most sense when timing drives value: you are raising money, a competitor is close, you plan to license soon, or the product may be outdated within a few years. If the extra fee isn’t justified, a standard application still secures your filing date and patent pending status. Faster examination gets you a decision sooner, but it does not guarantee approval.

How Much Does It Cost To Get A Patent?

Hiring a patent professional to draft your non-provisional patent application typically costs $10,000 to $20,000 or more, based on several factors like the type of patent application and complexity. USPTO filing, search, and examination fees for a utility application add about $2,000 for a large entity, $730 to $800 for a small entity (the lower figure when filing electronically), and $400 for a micro entity. It’s smart to conduct a prior art search prior to filing your patent application as it will help you determine if it is worth pursuing. A prior art search done by a professional typically ranges from $1,500 to $4,000.

Work With a Skilled Patent Attorney

If you want to seek patent protection for your software, it’s wise to start speaking with a skilled and experienced patent attorney. They can advise you on the timeline you can expect and your options for speeding up the process to get a patent.

Request a free consultation today and discuss protecting your software with one of our knowledgeable attorneys.