Sadly, inventors and entrepreneurs are faced with a big hurdle when it comes to forming intellectual property rights needed to support technology based startup businesses. According to data from the US Patent Office (USPTO), the current backlog of patent applications is over 1,200,000 with more than 700,000 not having received a first Office Action, meaning your application is still in the pile. The total time to get a patent is reported by USPTO to average 34 months (i.e. pendency). However, this number is an average that does not reflect the longer pendency typically experienced by emerging technologies where the number of applications is rapidly increasing. If you're CEO of a company in a high-growth tech sector and plan to introduce new products based on the invention within 1 to 2 years, the prospect of a patent being issued 4 or 5 years after filing is almost irrelevant; unless you are trying to raise capital.
The 2008 Berkeley Patent Survey, a national study of patents and entrepreneurship, reported that 75% of the executives at venture capital-backed startups consider patents to be an essential factor in their financing decisions. Investors are very aware that less than half of the applications filed result in an issued patent. An indeterminate outcome for 4 or 5 years can represent a big road block to venture funding. In rapidly emerging technology sectors having a patent in hand may make the difference in getting funded or not.
What to do. Accelerated patent examination, available through the US Patent and Trademark Office, can be an excellent solution if prosecuted correctly. It provides an opportunity to secure patent protection, usually in much less time as the normal process. Until now, there was significant uncertainty regarding meeting rather stringent requirements to qualify. You would not know going in if accelerated examination would be approved, even though significant expense had been incurred attempting to comply with USPTO requirements.
The USPTO is now moving forward with implementation of Track 1 of a new three track patent processing program that will guarantee accelerated examination. Track 1 of this program will allow the applicant to pay a higher fee and receive faster examination. The fee is set at $4,000, but the USPTO may receive Congressional approval to allow for a 50% discount for small entities. The patent application must be an original utility or plant patent application. The number of independent claims is limited to four, with 30 total claims. The application can only be filed through the USPTO's electronic filing system. The application will receive special status throughout its entire course of prosecution. The goal is to get final disposition within 12 months. That does not mean you are guaranteed a patent, but you will have an answer sooner rather than later. If you need a patent to support raising venture capital, then the new Track 1 process may be the right choice. But act fast. Only 10,000 applications will receive Track 1 processing the first year.
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