By: Mark R. Malek
As many of our readers know, there is a somewhat significant backlog in patent examination right now. For example, the average time to get a patent allowed now is about 33 months. You can reference the patent dashboard for more information. I know that this sounds terrible, but it is a huge improvement, and things are going the right way. For example, the patent backlog is down to 657,000 now – which is significantly lower than the 900,000 that I remember.
There are ways to try to shortcut the long wait associated with with the patent examination process, provided that the Applicant meets certain criteria. I will be writing about many of these options over the next several posts, but the one that I wanted to discuss first is based on the age of the inventor. Inventors over the age of 65 can advance examination of their patent application out of turn. This is outlined in the Manual of Patent Examination Procedures (MPEP) Section 708.02. Maybe it is because I am getting older, but I just don’t think that 65 is that old, but if the Patent Office sees fit to provide a benefit to inventors over the age of 65 – take it!
So what exactly does it mean to file a petition to make special? In short, the Patent Office is offering to grant “special status” to an application that has a named inventor that is over the age of 65. Imagine that a patent Examiner’s desk might have a stack of papers on it that is about 3 feet high. That stack of papers represents patent applications that still need to be examined. Now imagine that the application you just submitted is on the bottom of that stack. After the Patent Examiner receives the approved petition to make special based on the age of the inventor, your application is taken from the bottom of the stack and put right on top. This is a very simplistic explanation, but this type of petition will likely provide an examination that lasts only about a year.
The biggest advantage to this type of petition is that it is completely free. Once you receive a filing receipt, simply fill in the form and file it. Another huge advantage is that this type of petition is automatically processed. In other words, there is no need to wait for the petitions branch at the Patent Office to make a decision on the petition (sometimes taking upwards of three weeks or so). A really good write-up on the procedure is available from the Patent Office here.
This petition can be submitted even if just one of the inventors on a patent application is over the age of 65. It is imperative, however, not to try to trick the system. Please do not just name someone who is over the age of 65 as an inventor for the sake of filing the petition. This will likely lead to all sorts of headaches down the road when trying to enforce the patent. For example, you do not want to run into an accusation that you have committed fraud on the patent office by naming someone over the age of 65 as an inventor when they truly are not an inventor. This could lead to invalidation of your patent. In order to be named an inventor, one has to have had something to do with at least one of the claims that are allowed in a patent application (more on this in a future post).
As I will discuss in later posts, there are several other ways to accelerate examination of a patent application, but none as convenient, fast, and hassle free as a petition to make special based on age.