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Patent Law

: Patently Obvious

Delayed Examination: USPTO Proposes 12-Month Optional Delay in Prosecution and in Payment of Full Fees

By Dennis Crouch, Esq.

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The USPTO is seeking comments on a fee-deferral program that would allow patent applicants to delay patent application processing for 12-months before paying the full non-provisional application fee. This process could be coupled with provisional application filings ? effectively providing a 24-month delay.

Provisional applications have become hugely popular with almost 150,000 being filed each year. The vast majority of provisional filers use the form to delay non-provisional filing for at least 11-months. Allowing these applicants to delay further will help relieve the immediate queue of applications pending examination. From the press release:

The proposal would benefit applicants by giving them additional time to determine if patent protection should be sought ? enabling them to defer additional fees and enabling applicants to focus efforts on commercialization during this expanded provisional period. The proposal would benefit the USPTO and the public by adding publications to the body of prior art, and by removing from the USPTO's workload those nonprovisional applications for which the applicants have decided not to pursue examination.

The mechanism of operation of this new option is somewhat clunky: At the end of the 12-month provisional term, the applicant would then file a non-provisional application along with the basic filing fee (currently $330) and oath. The applicant would then receive a notice of missing parts with a 12-month-from-filing response period. To "complete" the application and put it in the examination queue, the applicant must then pay the additional filing fees ($760) along with a delay surcharge ($130?).