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The United States Patent and Trademark Office (USPTO) estimates that the average patent application is completed in two and a half years. Some patent applications directed to complex inventions, like software and other computer implemented inventions, take even longer to issue. Often, the process is too slow for some software inventors to realistically and feasibly bring their ideas to market.
Due to the nature of their industry, software developers often need a quicker turnaround when it comes to obtaining a patent from the USPTO. Pressure from investors, the possibility that others will bring the same idea to market, and limited shelf life of the underlying software code in the proposed invention can all be good motivations to complete the patent prosecution process quickly so that a final, patented product can be put on the market or made available for licensing.
Options for Expediting the Patent Application Process
Fortunately, many patent applicants may have the ability to expedite the patent application process for software-related applications. To expedite the patent process, the following options are available:
- Track One Prioritized Examination: The Leahy-Smith America Invents Act, or AIA, created, among other things, an expedited system wherein patent applicants can complete the patent application process within 12 months – for a fee. The fees generally range from $4,000 to over $6,000, which is quite expensive.
- Petition to Make Special: The concept behind this expedited request is that the patent should be expedited because of certain circumstances. The circumstances might be related to the inventor’s status, or the circumstances could be related to the subject matter of the invention.
- With respect to the status of the inventor, for instance, if the inventor is suffering from poor health or is over the age of 65, then that may be a compelling reason to make the application special.
- With respect to the subject matter of the invention, if the invention is something that improves the environment, can be used for national security, or is good for counter-terrorism, then it may be expedited as special. Software that can be used by the Pentagon would likely be a better candidate for a petition to make special than software developed for a video game.
- Patent Prosecution Highway: Over the last several years, foreign patent offices have collaborated to create the Patent Prosecution Highway, or PPH, that allows an entity that obtained a patent in one jurisdiction to have that patent application expedited in the second jurisdiction. The PPH is only relevant if a first patent was obtained in a foreign jurisdiction, such as the European Patent Office or the Japanese Patent Office. Therefore, if a software inventor files for patents in multiple jurisdictions and obtains a patent in a jurisdiction that participates in the PPH, then it can use the PPH program in the United States.