The U.S. Patent and Trademark Office's (USPTO) Prioritized Patent Examination Program, known as the Track-1 Program, provides an accelerated patent application examination in exchange for additional filing fees to those required for regular filings. But how does an applicant determine whether and when to use the Track-1 Program for a patent application? The answer may relate to an applicant’s business needs, as well as whether Track-1 limit has been exhausted for a particular year.
A regular patent application averages two (2) to four (4) years from the time of filing to issuance. In contrast, the Track-1 program should result in a final disposition (i.e., either a grant or rejection) within twelve (12) months from granting of the Track-1 petition. Generally, the Track-1 petition for a prioritized examination is submitted at the time of filing the patent application. Whether to use the Track-1 Program for a patent application may, in turn, be based on if the applicant’s business requires a patent sooner than later. Some entities with a less robust patent portfolio may be more inclined to receive a granted patent more quickly to show company viability. Other or the same entities may desire an invention patented prior to a set product release date or in view of an international filing strategy. For instance, as noted in our previous Track-1 discussion, an entity “can procure an Allowance under the Track-1 program before formal patent prosecution begins under the standard patent process” and use this “fast success before the USTPO in an investor pitch and contemplate a broader strategy for U.S. continuation and international applications”.
The USPTO fiscal year runs from October 1 of one calendar year to September 30 of the following year. During this fiscal year, the USPTO only permits a limited number of Track-1 petitions to be granted. “Effective July 8, 2025, the USPTO increased the limit on the number of prioritized examination requests that it may accept in a fiscal year from 15,000 to 20,000.” This means that, if the 20,000 limit is reached prior to September 30, then the USPTO will have grounds for dismissal of a Track-1 petition. Accordingly, it may be better to wait until the next fiscal year begins and this limit resets on October 1 to guarantee the Track-1 petition will not be dismissed for these grounds. Note that because the USPTO does not post daily statistics, it may be difficult to appreciate whether the limit has been reached.
As an alternative to waiting for the next fiscal year, an applicant may choose to file a provisional patent application during the current fiscal year to establish a priority date. Then, when the next fiscal year begins, the provisional patent application can be converted to a non-provisional with a Track-1 petition.
In summary, while the USPTO’s Track-1 program provides an accelerated patent application examination, timing is key for gaming the Track-1 limits.
