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. While the timeline to receive a notice of allowance varies, on average it takes between 22 to 30 months. 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) is tasked with examining hundreds of thousands of patent applications at any given time, so as you can imagine, there is a constant backlog. 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.
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.
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.
Once you submit your application, it can take 3 to 48 months to receive a final determination on your patent application. The majority of patent applications take two years or longer.
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. It’ll end when the USPTO either approves or denies your application. Most applications stay in the pending phase for one to three years. However, software applications take longer and can stay in the pending phase for three to five years, sometimes even longer.
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 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 protection for one year while preparing your application.
However, your patent application now starts at this date as the earliest filing date. In return for this extra protection at the beginning, you lose a year of protection on the back end.
Previously Filed Patents
The law has changed over the years. If you filed a utility patent on or before June 8, 1995, then your patent timeline is calculated differently. Your patent expires 17 years from the date of filing.
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.
How To Expedite The Patent Filing Process
As you can see, you have a limited amount of time that you can enjoy protection. A pending patent application status can quickly take up a large chunk of your time period. This means that the faster you can receive your approval, the quicker you can start enforcing your patent.
There are four methods for reducing the time it takes to secure your patent. An experienced patent attorney can advise on which is best for your software patent.
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. This petition can sometimes require an additional filing fee. This method isn’t as fast as other options.
Patent Prosecution Highway (PPH)
This provision applies when you intend to seek patent protection with foreign intellectual property offices. Once you receive a final ruling with one office, you can fast-track the examination process with other patent offices that participate in the Global PPH program.
Prioritized Examination (Track One)
If you’re willing to pay a higher petition fee, then you can take advantage of the Track one program. This program aims to reach a final disposition on patent applications within 12 months. There are several requirements to qualify for participation in this program. It’s best to speak with an experienced attorney who can assist with your application.
Accelerated Examination (AE)
Similar to the Track One program, the Accelerated Examination program is designed to give a final disposition within 12 months. There’s a limit on how many independent claims and total claims you can make during this process.
The AE program only gives you two months to respond to Office Actions instead of the standard three. While the process to file is easier than the Track One program, you do have to include an Accelerated Examination Support Document (AESD). You’ll need an attorney to conduct a patent search and prepare this document for you.
How Much Does It Cost To Get A Patent?
Hiring a patent professional to draft your patent application can range between $5,000 and $20,000 based on several factors like the type of patent application, and complexity. There’s also a $330 USPTO filing fee. 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 between $1,000 to $3,000.
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 your knowledgeable attorneys.