Q. What is the current deferred review system of the U.S. Patent and Trademark Office (USPTO)?
A. The AIA went into effect on September 16, 2011, providing for a deferred review policy for Track Three at the request of the applicant, which remains in effect today.
Q. Which applications can I request a deferral of review?
A. U.S. non-provisional invention applications, plant patent applications, and PCT applications entering the U.S. national phase may request a deferral of examination.
Q. Who can request a deferral from the USPTO?
A. The USPTO has no requirements regarding the status of the applicant requesting deferral, such as whether it is a micro or small entity.
Q. How do I request a deferred review from the USPTO?
A. The applicant shall ensure the completeness of the application documents (Claim of Right, Explanatory Statement, Applicant's Oath, and other necessary materials), pay the basic application fee, retrieval fee, examination fee, etc., and submit a request for deferred examination. The applicant shall not submit a request for non-disclosure or have withdrawn the request for non-disclosure.
Q. Can you tell me when the USPTO will conduct a deferred review?
A. An applicant may submit a request for deferred review at the time of application or after application, but a request for deferred review will not be granted if the USPTO has issued a First Notice of Review Opinion or an Authorization Decision.
Q. Is there any additional cost for the USPTO to conduct a deferred review?
A. There is an additional $140 processing fee for requesting a deferred review.
Q. How long can I delay the review?
A. The deferral period is no more than three years from the earliest priority date, or 30 months for PCT national phase applications. If the applicant fails to fill in the delay period or fills in a period longer than the maximum period, the maximum period will be requested by default.
Q. What is the USPTO's internal mechanism for deferred review?
A. After the USPTO grants a request for deferred review, the application remains open for 18 months from the date of filing (earliest priority date) and review is initiated at the time chosen by the applicant.
Q. Can I withdraw from the program after I have been granted a deferred review?
A. The USPTO does not provide for an opt-out mechanism for deferred review.
Q. What are the latest developments in the USPTO deferred review system?
A. To reduce the burden on applicants, the USPTO plans to initiate a deferred review pilot project, which was completed for comment in July 2023 and has not yet been launched. The pilot builds on the current deferred review policy by providing AI-assisted machine search reports for micro-entity status applicants to better determine whether to pay a review fee for follow-up proceedings. The application is subject to fulfillment of the basic conditions for deferred review, and the following conditions are also required to be fulfilled:
- Use the dedicated form to submit your request and pay the retrieval fee;
- No more than 3 independent claims and no more than 20 total claims are applied for, excluding multiple dependent claims;
- The Right to Apply claim satisfies the uniqueness requirement;
- If priority is claimed, only the priority of the U.S. provisional application may be claimed.
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