Track one is USPTO’s Prioritized Patent Examination Program in which a utility patent application is given priority and examined before other non-prioritized (normally filed) patent applications. Under the track one initiative, the USPTO attempts to reach finality of the matter within one year of filing the patent application. Finality means either an allowance (grant) or a final office action, instead of a 2-3 year time frame for normally filed applications. If you’re unfamiliar with these terms, we encourage you to read the patent process first before continuing further.

To prioritize a patent application one needs to pay an extra government fee of $4,000 (large entity), $2,000 (small entity), or $1,000 (micro entity). If after making an application a track one priority, the patent application receives a final office action rejection then the application will be removed from the priority queue and presumed to be a conventionally filed non-priority application, unless the Applicant again submits the priority government fee mentioned above. These fees are in addition to the usual government fees for non-prioritized applications.

The advantage of track one applications is that the chances of approval are higher than conventional non-prioritized patent applications. However, such an approval comes with an unwritten caveat. In order to get an allowance the claims need to be sufficiently narrow enough to convince the examiner that no related prior art exists that can bar patentability of the claims. This is because track one applications impose a deadline on patent examiners and thus they have to rush through the examination process. If the claims are broad enough, the examiner would tend to issue a final office action rejection (better be safe than sorry approach) and remove the application from fast track, instead of an allowance. However, since broader claims are generally preferred, a strategy often employed by patent attorneys is to file a non-prioritized continuation (clone) application with a broader claim set in conjunction with the prioritized application having a narrower claim set. 

Thus, prioritizing an application is usually suggested for fast evolving technological areas due to the additional fees incurred. Further, applicants should be prepared to file a narrow claim set to take advantage of the track one program, if desired.

 

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