In our fast-paced business world, it can be tempting to look for shortcuts wherever possible, including in the patent drafting process. While this impulse is understandable, if it comes at the cost of the quality of your patent application, such a strategy might backfire. Knowing the rules of the game and being aware that patent offices are leveraging AI to expedite application reviews will be beneficial.
There is no simple, one-size-fits-all answer to the question, "How long does it take to get a patent?" It varies based on factors including national laws, the backlog patent offices are facing and, last but not least, the quality of the patent application itself. The best way to improve your chance of prompt patent approval is to know the process inside out and be thorough in your execution of its various steps.
An overview of the patent life cycle
The road to patent protection begins when an individual inventor or organization comes up with a novel idea for a new device, machine, process or method: The TRIPS Agreement sets out the minimum standards to be provided by member states regarding each of the main areas of Intellectual Property. When it comes to patentable subject matter, Article 27 of TRIPS states that "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application." This serves as a reasonable baseline, but it must be borne in mind that certain countries have specific conditions that must also be observed. For example, in the U.S., the physical design of a machine can be patented, whereas in the EU, it would require industrial design protection.
- Once the invention is solidified and can be reproduced on an industrial level, it must be documented in the application form required by the relevant jurisdiction.
- A written description of the invention's purpose and operation, a drawing or blueprint that illustrates its function, and claims fulfilling the novelty and inventive step requirements should be provided as well.
- After the inventor submits their application and pays all appropriate fees, the patent office receiving it will begin the examination process — contacting the applicant if necessary for clarification or additional information — and finally, issue the grant or a rejection.
- If allowed in the jurisdiction where patent protection is sought, the applicant can first amend the application to meet examiners' demands and file an appeal if subsequently rejected.
Why does it take so long to get a patent?
Again, the simple, broad answer to this question is that patents, like all other major IP assets, are bound by the terms of specific laws.
Getting a patent application examined takes, on average, between one to three years or even more. Fortunately, there are a few things you can do to speed up the process.
Nevertheless, there is more to it than that: First of all, patent offices might, at any given time, be looking over thousands of patent applications. Each one requires a meticulous process, as examiners:
- Look for relevant prior art
- Check application documentation to ensure it meets all formal and substantial requirements
- Compose and distribute notices requesting additional information from applicants and, in some instances,
- Directly confer with would-be patentees
In certain fields, like telecommunications, an invention might become obsolete in a few years. Being granted a patent in a speedy or accelerated way is mostly paramount for the applicant, but it is also necessary to protect R&D efforts driving such inventions and ultimately to incentivize innovation, which is the raison d'être behind the patent system.
To meet the business needs of speeding up the grant process, almost a decade ago, the IP5 offices set up the Patent Prosecution Highway initiative, which "fast-tracks patent examination procedures already available at the offices to allow applicants to obtain corresponding patents faster and more efficiently." Lately, the EPO has also worked to leverage machine learning and artificial intelligence techniques to increase efficiency and quality in the patent grant process, specifically when it comes to translation of prior art documents or classification tasks for patent examiners. Here, the challenge lies in the fact that patents are not based on natural language but rather on language derived from tech domains, and it takes a far greater computational effort to achieve reliably, accurate results.
That is another major reason why patent approval is not a quick process: patent examiners want to make absolutely sure that they (and you, the applicant) got everything right. If they, for some reason, fail to discover a piece of similar prior art, the ensuing grant would harm the overarching goal of the patent system to promote innovation, unless a third party later cites the prior art in an opposition motion.
However improbable it may be, the hypothetical described above illustrates another common reason why patents are not quickly granted —mistakes made by those applying for them. Whenever a patent examiner finds a problem with an application (an incomplete drawing, missing information) or has a question about some aspect of its claims, they send a notice to the applicant saying as much. They wait a certain length of time for a reply: In many jurisdictions, this is two months. If you were to receive such a request and did not reply to it within the time allotted, your application might be considered withdrawn.
The best way to avoid delays in the grant of your patent is to be very thorough when you draft your application, description, drawings and claims. Also, there are certain conditions under which you can request an accelerated review.
But more to the point, processing stops in its tracks whenever examiners need additional information from you, meaning that an application that might have been processed in 24 months would now take up to 26 months (or longer, if there were multiple issues with the application). On average, before a patent office without an outstanding backlog, processing might take between one to three years; careless applications (with poorly drafted claims or other formal and substantial inaccuracies) can make it last as long as six.
How do I speed up the patent grant process?
Simply put, the best way to reduce the chances of any delay in the grant of your patent is to be as thorough as possible when you draft your application, description, drawings and claims. Most patent offices worldwide will be handling numerous applications at once, but the fewer steps examiners add to the process through requests for information you neglected to include, the better. In the event you do receive notices asking for clarification, you must respond as soon as possible to mitigate the time lost. Additionally, if seeking Patent Cooperation Treaty (PCT) protection from the WIPO along with domestic patent approval in individual jurisdictions, follow those timelines closely as well.
There are also conditions under which you can request an accelerated review. These differ significantly from country to country, so do their speeds: The U.S. aims to process accelerated applications in under 12 months from the filing date; Japan's expedited average is 2.3 months, and the European Patent Office (EPO), under its PACE programs, aims to issue a search report within six months. For examination, the EPO aims to produce an examination report within three months and any further examination reports within three months of the applicant's response.
All these programs usually require higher processing fees and the submission of more exhaustive documentation supporting the application. Lastly, if filing a patent application in one patent office for an invention that has already been considered partially patentable by another, you may receive expedited review if both jurisdictions are party to the Patent Prosecution Highway (PPH) program, as mentioned above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.