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From fiscal year 2020 to January 2025, the backlog of unexamined U.S. patent applications rose by approximately 45%, from 576,103 to 837,928.[1] Meanwhile, the average time for a patent applicant to receive a first Office Action rose from 14.8 months to 22.6 months over the same time period—a 53% increase.[2] From our own anecdotal experience, U.S. non-provisional utility patent applications are taking from about 12 months to 24 months to receive a first action, while U.S. national stage applications (based on an international PCT application) are taking much longer—over 36 months in some instances. USPTO Director John Squires has taken aim at reducing the backlog, but excessive examination delays are likely to be with us for some time.

We present here business-focused strategies patent applicants should consider to manage—or benefit from—the backlog in the meantime. One group of strategies focuses on expediting prosecution to break out of the backlog. The other group of strategies focuses on certain benefits of longer patent application pendency.

Expediting Patent Prosecution

There are several reasons why a patent applicant may wish to expedite the application process. Perhaps most importantly, the substantive exclusivity rights afforded by a patent may provide significant advantages against competitors. On the business-focused side, a U.S. patent may also significantly impact capitalization, including attracting investments and justifying corporate valuation, due to the “validating” effect of an issued patent on a business’ viability.

There are also patent strategy considerations, including getting an early “read” on patentability in the important U.S. market before investing significant resources pursuing foreign patent filings. Relatedly, a U.S. patent, if issued early, may provide persuasive value and leverage to expedite prosecution in counterpart foreign patent applications. Hence, the timing of U.S. patent prosecution goes hand-in-hand with a comprehensive global patent strategy.

For these and other reasons, patent applicants may consider several available options to expedite prosecution in the U.S.

The most powerful mechanism to expedite prosecution is the Track One Prioritized Examination program. Currently, the USPTO accepts 20,000 requests per fiscal year.[3] As long as this quota has not been exceeded, applicants may pay a fee (currently, about $2,000 for a small entity, or about $4800 for a large entity) to cut the time to first action to a mere three months based on current statistics which encompass all technology areas.[4] Among other requirements, the application is limited to no more than four independent claims and 30 total claims, which we find is quite adequate for most inventions. In addition to the reduced time to first action, Track One aims to reach a final disposition (allowance or final rejection) within one year after petition grant, meaning that intervening actions are accelerated as well.

In addition to Track One Prioritized Examination, the following three further mechanisms involve a “petition to make special,” which offers faster examination, but not typically as fast as Track One.

Streamlined Claim Set: The USPTO recently launched a “Streamlined Claim Set Pilot Program” as a cost-effective option in response to the backlog. While the fees to participate are nominal, the program is quite restrictive in that it allows for only one independent claim and fewer than ten total claims, and only applies to non-continuing applications filed before October 27, 2025.[5] While these requirements are somewhat restrictive, this program may still be attractive for the right applicant with a qualifying patent application. More importantly, the program is a broader signal from the USPTO that we may see more developments on cost-effective expediting strategies.

Age or Health Factors: Perhaps the most cost-effective mechanism, available to a limited group of applicants, is the long-standing petition to make special based on age or illness. For applications listing one inventor who may not survive the length of prosecution due to a verifiable health condition, or for applications listing at least one inventor 65 years or older, a petition to make special can be filed at no cost.[6] Typically, these petitions are granted within one month or less (note: there is an e-filing option for petitions based on age which are immediately granted).[7] There is no official USPTO guidance on the extent of acceleration under such petitions, however in certain technology areas we have seen the time to first action as short as three months.

Patent Prosecution Highway (PPH): Finally, where an indication of allowability has been received in a qualifying counterpart foreign patent application or qualifying international search report, the PPH offers expedited prosecution with nominal fees.[8] The most significant restriction is that the claims pursued in the U.S. must correspond to those in the foreign patent application or international search report, which limits an applicant’s options. A PPH petition is typically granted within one month.[9] Also, the USPTO has recently implemented an adjustment to the docketing of PPH applications such that time to first action is approximately half that of non-PPH applications in the particular technology area.[10] We have seen first actions in as short as one to two months in certain technology areas.

Benefitting From the Backlog

Whereas many patent applicants would prefer to expedite prosecution, some might obtain strategic benefits from the backlog should they forgo expediting prosecution. For example, an applicant may not be certain which inventions or embodiments in the application have the greatest business value at the time of filing. This consideration may be particularly applicable in the pharmaceutical space where identification of a lead therapeutic typically lags behind the patent filing by several years. Another practical reason to delay prosecution is for funding or cash flow, where the costs of substantive prosecution would be too significant as an up-front expenditure, particularly in view of a limited cash runway.

Weighed against the advantages of expediting listed above, an applicant may choose to follow the ordinary course of prosecution—and benefit from the backlog—particularly due to obtaining patent term adjustment (PTA).

PTA is complex and this article does not attempt to define its bounds. The general concept is that a patentee is awarded additional patent term for certain USPTO delays, including time to first action and time to respond to an applicant’s office action responses, as well as total pendency of the application. However, the applicant’s own delays (such as taking extensions during prosecution) generally reduce the awarded PTA and should be avoided.

The economic advantages of PTA can be enormous. For example, considering a block-buster pharmaceutical drug with annual US sales of $1 billion dollars, each day of extended patent term due to PTA would have a value of nearly $3 million.

Based on the current backlog, in most situations, applicants of non-expedited patent applications which timely reply to all office communications can expect a significant amount of PTA.[11] However, there are opportunities to further maximize the amount of PTA ultimately awarded. Given the longer time to first action and total pendency for national stage filings, as opposed to standard U.S. non-provisional filings, it is likely that a national stage application would receive a larger PTA as a result of Patent Office delays due to the backlog.

Conclusion

In view of the current USPTO examination backlog, patent applicants should carefully consider and discuss business and timing goals with their patent counsel from the start. With appropriate guidance, the current patent application backlog (which is likely to persist for several more years, even as it is incrementally reduced) can be strategically navigated. Applicants should consider taking advantage of available expediting initiatives, or alternatively, consciously leveraging Patent Office delays to maximize benefits therefrom.[12]

[1] Remarks by Director Squires at the 2025 AIPLA Annual Meeting, October 31, 2025, https://www.uspto.gov/about-us/news-updates/remarks-director-squires-2025-aipla-annual-meeting.

[2] USPTO Patents Pendency Data, November 2025, https://www.uspto.gov/dashboard/patents/pendency.html

[3] USPTO’s Prioritized Patent Examination Program, https://www.uspto.gov/patents/initiatives/usptos-prioritized-patent-examination-program. The “Track One” petition is technically not guaranteed and subject to USPTO discretion. Anecdotally, we have never had a Track One petition denied, and all have been granted within about 3 months.

[4] USPTO Patent Track One Data November 2025, https://www.uspto.gov/dashboard/patents/track-one.html. The time from filing to petition grant is currently 1.4 months, and the time from petition grant to first action is currently 1.5 months, which add to about 3 months total from filing to first action.

[5] USPTO Streamlined Claim Set Pilot Program, https://www.uspto.gov/patents/initiatives/streamlined-claim-set-pilot-program.

[6] USPTO Make Special – Age or Health, https://www.uspto.gov/patents/apply/petitions/23-make-special-age-and-health.

[7] USPTO Petition Data, November 2025, https://www.uspto.gov/dashboard/patents/petitions.html.

[8] USPTO Patent Prosecution Highway (PPH) – Fast Track Examination of Applications, https://www.uspto.gov/patents/basics/international-protection/patent-prosecution-highway-pph-fast-track.

[9] USPTO Petition Data, November 2025, https://www.uspto.gov/dashboard/patents/petitions.html.

[10] USPTO Patent Prosecution Highway (PPH) – Fast Track Examination of Applications, https://www.uspto.gov/patents/basics/international-protection/patent-prosecution-highway-pph-fast-track (see notice at top of page).

[11] This is not to say that some expedited applications may still receive some PTA due to the complex calculations involved, but the PTA awarded would generally be smaller for expedited applications.

[12] While this article sets out potential considerations for patent applicants vis-à-vis prosecution timing, the timing of actions made on a pending patent application are ultimately subject to exclusive control by the USPTO and may vary. While our anecdotal experiences tend to align with the views expressed herein, there is never a guarantee of a specific timing outcome.