Filing a patent application is just the beginning. What follows is prosecution—the examination process with the USPTO, which in many technology areas now proceeds in roughly 12–24 months, though timelines vary by art unit and strategy. Understanding this process helps you plan budgets, set expectations, and make informed decisions along the way.

Here’s what actually happens from the day you file until you hold an issued patent.

The Process at a Glance

Stage 1: Filing the Application

A complete patent application includes:

• Specification — The detailed written description of your invention
• Claims — The precise legal definition of what your patent protects
• Drawings — Figures illustrating the invention
• Abstract — A brief summary
• Filing fees — Currently about $1,820 for large entities, $910 for small entities

Once filed, you receive a serial number and official filing date. This date is critical—it establishes your priority against later filers and determines when your patent will expire (20 years from filing for utility patents).

Immediately upon filing, you can mark products as “Patent Pending.” While this has no legal force until the patent issues, it provides notice to competitors and can deter copying.

Stage 2: The Waiting Period

After filing, very little happens for 12-18 months. Your application sits in a queue waiting to be assigned to an examiner. During this time:

• Publication at 18 months — Unless you requested non-publication (only available if you’re not seeking foreign patents), your application publishes and becomes public
• Continuing development — You can file continuation applications to add new claims or pursue variations
• Track One option — For an extra ~$2,500, you can request prioritized examination, which typically gets you a first action within 6 months

Stage 3: First Office Action

When an examiner finally reviews your application, they issue a “first office action.” This document outlines any problems the examiner found. The most common issues:

Prior Art Rejections (35 U.S.C. § 102 and § 103)

The examiner found existing patents or publications that anticipate your claims (§ 102) or make them obvious (§ 103). They’ll cite specific references and explain why they believe your claims aren’t novel or are obvious combinations of known elements.

Enablement/Written Description Rejections (35 U.S.C. § 112)

The examiner believes your specification doesn’t adequately describe the invention or doesn’t enable someone skilled in the art to make and use it.

Subject Matter Rejections (35 U.S.C. § 101)

Particularly common for software and business method patents, these rejections assert that your invention falls into an unpatentable category—abstract ideas, laws of nature, or natural phenomena.

Claim Formality Rejections

Issues with claim language, indefiniteness, or other technical requirements.

Receiving a rejection isn’t failure—it’s expected. First office action rejection rates exceed 80% for most technology areas. The real work of prosecution is what comes next.

Stage 4: Responding to Office Actions

You typically have three months to respond (extendable to six months with fees). A response might include:

Arguments

Explaining why the examiner’s rejections are wrong. Maybe the cited prior art doesn’t actually teach what the examiner thinks it teaches. Maybe the combination would not have been obvious. Maybe your claims fall outside the abstract idea exception.

Claim Amendments

Narrowing your claims to distinguish from prior art. This is often necessary, but requires care—overly narrow claims may not cover competitor products. Amendments must also be supported by your original specification; you can’t add new matter.

Evidence

Declarations from inventors or experts, secondary considerations of non-obviousness (commercial success, industry praise, long-felt need), or other supporting documentation.

After your response, the examiner will issue another office action—either allowing the claims, maintaining rejections with additional explanation, or raising new issues. This back-and-forth may continue through multiple rounds.

Final Rejection

At some point, the examiner may issue a “final” rejection. Despite the name, this isn’t necessarily the end. You can:

• File a response — If you can overcome the rejection without broadening claims
• Request Continued Examination (RCE) — Pay a fee (~$1,400) to restart prosecution
• Appeal — Take the case to the Patent Trial and Appeal Board
• File a continuation — Abandon this application but file a new one with different claims

Stage 5: Allowance or Appeal

If prosecution goes well, you’ll receive a Notice of Allowance. The examiner has agreed that your claims are patentable. You have three months to pay the issue fee (~$1,200 for large entities), and the patent will then issue.

If you can’t reach agreement with the examiner, you can appeal to the Patent Trial and Appeal Board (PTAB). Appeals involve:

• Appeal brief — A detailed legal argument (typically $5,000-$15,000 in attorney fees)
• Examiner’s answer — The examiner responds to your arguments
• Reply brief — Your rebuttal (optional)
• Decision — The Board rules, often 1-2 years after appeal filing

PTAB reverses examiners roughly 30% of the time on at least some rejections. But appeals are expensive and slow—often worth it only for high-value patents where prosecution has truly reached an impasse.

Stage 6: Patent Issuance

Once you pay the issue fee, your patent will issue within a few weeks. You’ll receive:

• Patent number — A unique identifier
• Grant date — When your enforceable rights begin
• Patent grant document — The official certificate (suitable for framing)

Your patent term runs 20 years from the filing date of the earliest non-provisional application to which it claims priority. If prosecution took unusually long due to USPTO delays, you may receive “patent term adjustment” extending this period.

After Issuance: Maintenance Fees

Issued patents require maintenance fees to stay in force:

• 3.5 years — $2,000 (large entity) / $1,000 (small entity)
• 7.5 years — $3,760 / $1,880
• 11.5 years — $7,700 / $3,850

Miss a maintenance fee deadline, and the patent expires. There’s a six-month grace period with surcharges, and petition procedures to revive patents abandoned unintentionally, but it’s far better to track these deadlines carefully.

Typical Timeline and Costs

For a moderately complex utility patent:

• Filing to first office action: 12-24 months
• First action to allowance: 6-18 months (1-3 office action rounds)
• Allowance to issue: 2-3 months
• Total timeline: 2-3.5 years typical

Total costs through issuance (attorney fees + USPTO fees + typical office action responses): $15,000-$30,000 for a straightforward case. Complex technologies, difficult art, or multiple RCEs can push this higher.

What Makes Prosecution Easier?

Some factors lead to smoother prosecution:

• Clear novelty — If your invention is genuinely different from prior art, arguments are easier to make
• Well-drafted claims — Claims that clearly capture what’s novel while avoiding prior art require less amendment
• Complete specification — Having detailed disclosure supports claim amendments without running into new matter issues
• Examiner relationship — Experienced attorneys know how to work constructively with examiners
• Technical expertise — Attorneys who understand the technology can craft more persuasive arguments

Working With Your Attorney During Prosecution

Prosecution is a collaboration. Your attorney brings legal expertise; you bring technical knowledge. Effective engagement means:

• Reviewing office actions promptly — Understanding what the examiner found and why
• Providing technical input — Helping distinguish your invention from cited prior art
• Discussing claim scope — Understanding tradeoffs between broad and narrow claims
• Making timely decisions — Deadlines matter; delays cost money in extensions

Regular communication ensures prosecution advances efficiently without unnecessary rounds or missed opportunities.