Application Pendency and the USPTO

The USPTO’s trademark dashboard has a variety of pendency tracking. Despite a deluge of applications, the Office has kept up, by its own metrics: new applications are largely getting examined in the usual ~3 months from filing.

However, our Office Action Analysis tool data suggests that a lot of applications that are running into 2(d) and other substantive refusals are taking longer than usual to come to a final resolution. So, we did a breakdown on application pendency time. There isn’t the time to do a totally comprehensive survey; instead, we looked at how many applications got Office Actions with 2(d) refusals in January of 2020, 2019, 2018, 2017, and 2019 to see how many went abandoned, and how quickly those that went through to publication did so.

2(d) Refusal Rates Over Time

About 20% of all applications got 2(d) refusals in each year. There were no significant changes. Obviously, with the uptick in total filings (roughly double 2009 levels), the total number of refusals is much higher.

The rates at which refused applications went abandoned without ever being published has been pretty steady over time, hovering between 50 – 55%.

Applications with minor issues

When the applicant resolves a 2(d) refusal, how quickly can they do so? In 2009, 29% of refused applications had made it through to publication within ~12 months, 37% by ~18 months, and most of the rest by 24 months. For more recent applications, it’s a very different picture. Applications overcoming a 2(d) refusal within 12 months has dropped to 21-22%, and publication rates within 2 years are down to around 33% of applications. It’s just taking longer to get to similar results.

Why is this? My guess is that the huge application volumes result in a larger registry, and more applications are getting held up on prior pending applications. So, it’s just taking longer to resolve refusals than ever before.

The raw data:

YearStatus% of Refusals
2020Pub in 1 year22%
Pub in 1.5 yearsna
Pub in 2 yearsna
Pending40%
2019Pub in 1 year22%
Pub in 1.5 years28%
Pub in 2 years34%
Pending7%
2018Pub in 1 year21%
Pub in 1.5 years29%
Pub in 2 years33%
Pending3%
2017Pub in 1 year22%
Pub in 1.5 years37%
Pub in 2 years50%
Pending0%

Have a great weekend, and a fantastic MLK Day holiday on Monday!

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