Under the United States Patent and Trademark Office’s (USPTO) modernization efforts, the time between paying the issue fee and issuance of the patent is being reduced. Faster patent issuance gives patent applicants less time to decide whether to file a continuation or divisional patent application, which might cause unwary patent applicants to lose the right to file a continuation or divisional application.
During the process of obtaining a patent, once the USPTO has determined that your patent application is allowable (i.e., is patentable), patent applicants still have to pay the issue fee before a patent is granted. Under the current process, applicants typically expect that the patent will be granted in approximately three to six weeks. Before the date the patent is granted, however, patent applicants may still file continuation and divisional applications to seek a broader or different scope of protection based on the original application.
Starting May 13, 2025, this time frame will change. The USPTO has said applicants can expect the time between receiving a notification of intent to issue and the patent’s issuance to be approximately two weeks. As a result, depending on how the patent applicant receives communications from the USPTO (e.g., by snail mail as opposed to email), the patent may be granted before the issue notification is received.
This new process can also benefit patent applicants because the reduced time to grant a patent will mean that a patent application will mature into a patent faster and be enforceable against competitors sooner. This change will also shorten disclosure requirements, potentially reducing the need to withdraw applications from issuance or take other steps when foreign search reports are received or new prior art is found in the interim between notice and actual issuance.
In view of this reduced time frame to grant, patent applicants should consider whether to file a continuation or divisional application before paying the issue fee to avoid inadvertently losing their right to file further applications.
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