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Clients Should Expect Lengthy Examination Delays

Posted by Daniel Krueger | Jan 24, 2025 | 0 Comments

The trend of annual patent application filings at the U.S. Patent and Trademark Office (USPTO) has finally plateaued in the last 5 years at roughly 650k/yr. Before 2016, the trend line resembled an exponential curve, threatening to overwhelm the corps of patent examiners. Though there were struggles and, at times, daunting backlogs of unexamined applications, the Office was able to grow its workforce and meet the challenge.

Patent applications filed in the 1990's often waited 30 to 45 months for initial examination. In the 2010's, the Office was able to get this delay drastically reduced, bottoming out to an average of around 14 months. To the amazement of many of us older practitioners, applicants were often able to get their applications issued in a year or less.

As with many parts of the government and the economy, the Covid-19 pandemic adversely impacted operations. The Office, which had already begun experimenting with allowing examiners to work remotely as a means of increasing employee retention, accelerated the transition. While it enabled operations to continue, the transition only mitigated the pandemic's impact. Attrition increased, efficiency decreased, and the examination backlogs began trending upwards again. The pendency to first office action is currently above 20 months and still increasing.

The Office's latest attempts to bolster the examiner corps has been at least temporarily stymied by the new administration's hiring freeze. Turnover amongst examiners was already high (it's a challenging career!), and given that nearly all examiners now work remotely, it is expected to increase sharply in view of the administration's proclaimed efforts to curtail remote work. The author's recent conversations with examiners suggest that we can expect the examination backlog to explode and examination quality to plummet.

Things are not hopeless: the Office is unique in that it is the only government agency that generates a bottom-line profit. It is also notable for its role in promoting innovation and maintaining the U.S. lead in development of new technologies and associated domestic industries. This suggests that the administration will eventually move to exempt the Office from its aggressive downsizing of government institutions.

However, the pace of filings will not slow and even if an exemption is granted, the damage will have been done and not easily repaired. The author believes we are facing a return to the era of 30-45 month first examination delays for any new applications being filed this year.

About the Author

Daniel Krueger

Partner; Office: Houston

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