Accelerated Examination

The average length of time for a utility patent to issue is four years from filing.  In most cases, patent applications do not receive an initial review for at least a year from filing.  This extended examination process is undesirable for inventors and companies that want to bring a product to market quickly or prevent infringing products from capturing market share.  The U.S. Patent and Trademark Office has developed a program to assist applicants in expediting the examination process.  The goal of the Accelerated Examination program is take an application from filing to a final decision within one year.  While expedited examination is of benefit to applicants, there are major concerns that need to be considered before enrolling in the program.

To enroll in the Accelerated Examination program, the applicant must submit a complete application and two supplemental documents.  The first supplemental document is a pre-exam search document disclosing the results of a prior art search conducted by the applicant.  The pre-exam search document includes U.S. patents, patent applications, foreign patent documents, and non-patent literature relevant to the broadest reasonable interpretation of the claims.  In the second supplemental document, the accelerated examination support document, the references disclosed in the search document are discussed and compared to the claims.  The applicant must include an explanation of why each claim is patentable over the references.  These support documents are expensive to prepare and can result in narrow patent claims.

If the application qualifies for Accelerated Examination, the application will receive special treatment in the Patent Office.   The application will be moved to the top of an examiner’s docket, multiple conferences will be held both within the Patent Office and with the applicant, and there will be shortened time frames to respond to Patent Office requests.  The application will be moved to a final decision, which may be an allowance, a final office action, an appeal, a request for continued examination, or an abandonment, within one year of filing using the Accelerate Examination process.

While the expedited review may be beneficial to applicants, there are drawbacks to the program.  The largest concern is the risk of inequitable conduct when characterizing prior art.   If a reference is accidentally mischaracterized, e.g., a statement in a reference is missed or a reference is thought to not be pertinent, a party opposing the issued patent could argue that the patent is invalid.  Another limitation of the process is the requirement to conduct a search that encompasses the full breadth of the claims.  If the claims are amended during the examination process but the original search did not encompass those amendments, the applicant needs to conduct another search and provide the results to the Patent Office, raising the costs and risks of mischaracterizing the references.

Given the risks and costs associated with Accelerated Examination, the program may not be appropriate for most applicants.  The program may be worth considering if the applicant has already conducted an extensive patentability search and if the prior art in the invention’s field is not extensive or relevant to the claims.

Andrew Gerschutz

About Andrew Gerschutz

Andy Gerschutz is an associate in the Research Triangle Park office of Moore & Van Allen. Mr. Gerschutz concentrates his practice in intellectual property with a focus on patent prosecution. Mr. Gerschutz's areas of scientific expertise include plant biology, molecular biology, and biochemistry.


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