PTO Implements America Invents Act With Prioritized Examination


           The America Invents Act includes provisions for prioritized patent application examination that emulate the requirements of the Patent Office's "Track I" final rule.  76 FR 185 (September 23, 2011).  Under the system, a patent applicant pays an extra $4,800 fee ($2,400 for small entities) to have his or her patent application undergo accelerated examination.

          To qualify for the procedure, the application must have no more than 30 total claims and 4 independent claims.  

          Only the first 10,000 patent applications (per fiscal year) that pay the fee and meet the requirements will be accepted into the system. 

          According to the Patent Office, unlike the prior accelerated examination system (which continues to exist as well), a prior art search and an examination support document (ESD) are not required to be submitted with the application.  Those two elements of the prior accelerated examination system were disliked by many patent practitioners because of the belief the search and ESD could create estoppels and provide fodder for inequitable conduct arguments by third parties during litigation.

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