A colleague in Minneapolis asked me the other day how long it takes the USPTO to publish an entry into the US national phase.
MPEP § 1120(IV) says:
The projected publication date normally will be the later of: (1) eighteen months from the earliest filing date claimed; or (2) fourteen weeks from the mailing date of the filing receipt. The publication process takes about fourteen weeks.
I identified our most recent half dozen published patent applications that were entries into the US national phase. And another half dozen published patent applications from a year ago that were entries into the US national phase. And arrived at some average publication delays. It was nothing like fourteen weeks.
The answer turns out to be 173 days. From the date of entry into the US national phase (the “371 date”) the delay averages 173 days. That is about 25 weeks, or a week short of six months.
A year ago the average publication delay was 174 days. Basically unchanged.
What one must not forget is that for a 371 case, “publication” is not the same thing as “visible in Public PAIR”. For a 111a case, publication day is exactly the day that the application is for the first time visible in Public PAIR. But for a 371 case, it generally happens that the case is visible in Public PAIR at about the same time as the grant of the Foreign Filing License. This can be much earlier than publication day.
All of the cases that I looked at were cases in which the priority date was much further in the past than 18 months. Meaning that the usual count of 18 months was not the limiting factor in USPTO’s determination as to when to publish. Instead the limiting factor was somewhere else.
I’d guess that most of the delay that accounts for the 25-week period is the slowness of DO/EO/US to do its job. Filing receipts in 371 cases these days are taking a lot longer than filing receipts in 111a cases.
Thank you Carl for the nice article! Did you mean 173 days from the filing receipt date or from the filing date of the PCT national stage application?
Thank you for your kind words.
My statistic of 173 days (25 weeks) was arrived at by subtracting pub day from the 371 date for a bunch of cases, and calculating the average of the differences.
The MPEP says the delay is expected to be 14 weeks from filing receipt day.
What I did not go to the trouble to do was to measure the average time for DO/EO/US to mail a filing receipt. It would be interesting to measure that and then measure the average delay from filing receipt day to pub day. Maybe I will spend a bit of time to do that.
Recently DO/EO/US has fallen way behind. I see one of our cases in which we entered the US national phase on February 12 and today is August 3 and no Filing Receipt yet. That’s a delay of 172 days (25 weeks).
I see another of our cases where the Filing Receipt got mailed April 18 and the case got published July 26. That’s a delay of about 13 weeks which is actually better than USPTO’s stated prediction of 14 weeks.
Oh and technically “the filing date of the PCT national phase application” is the same as the PCT filing date. I guess you mean “the date upon which the national phase entry papers were filed”.