It is common knowledge that obtaining a patent is a long process, with applications taking on average three years from their filing date to mature into a granted patent. For startups, investing in this process can be daunting—many companies rise and fall in that span of time. Coupled with limited resources, quick pivots and the rapid evolution of software, the lengthy process of acquiring a patent can feel out of reach for many small businesses.
However, thanks to the America Invents Act, startups now have the ability to expedite the patent process under the USPTO’s Prioritized Patent Examination Program, also known as “Track 1.” Track 1 can cut the average time it takes to get a patent by more than half.
What is Track 1?
The AIA added the option of Track 1 for applications filed on or after September 26, 2011. This mechanism allows applicants to file a request to accelerate the traditional prosecution process, giving them the ability to obtain final disposition of their applications 12 months from the date the request for prioritized examination is granted.
How Do I Qualify for Track 1?
To qualify for Track 1, applicants must file a request when filing their utility or plant application. Track 1 can also be requested for a continuation, divisional or CIP applications. It is even available for RCEs, but must be requested prior to the first RCE office action.
Applicants requesting Track 1 cannot file applications that contain more than four independent claims, more than 30 total claims and any multiple dependent claims. Applicants do have to pay a fee in addition to standard filing fees for Track 1: $2000 if your company qualifies for small entity status, and $1000 if your company qualifies for micro entity status.
It is also important for applicants to keep in mind that the PTO only grants 10,000 Track 1 requests per fiscal year, which runs from October 1 to September 30. While this cap on requests has not yet been surpassed, they are on the rise. Currently, the PTO is averaging around 850 requests per month, and has received 6,842 requests since the beginning of the 2015-2016 fiscal year. Applicants can track the number of granted requests on the PTO’s website.
How Can Track 1 Benefit Startup Companies?
Track 1 can be beneficial for startups looking for a fast, efficient way to protect their technology. The quick turnaround time of Track 1 allows startup companies who want to scale quickly or get a product to market in a certain time frame pursue patent protection that keeps pace with their ever-evolving businesses. Additionally, for startups looking to be acquired or who are seeking investment, Track 1 can be an effective tool in quickly creating an IP portfolio that can enhance your business value. For companies that like to iterate or pivot, Track 1 provides a mechanism for quickly building a patent portfolio that reflects their rapidly changing technology.
In addition to the Track 1 Prioritized Examination, startup companies can also take advantage of legal technology to speed up patent prosecution. Products like LexisNexis PatentAdvisor® can help startups manage all aspects of their portfolios at a glance and provide users with analytics that help them streamline and enhance their prosecution strategies.