How to Move Patent Prosecution Forward Amid the USPTO Backlog

For patent professionals, the challenge remains: How do you move prosecution forward amid the USPTO Backlog?

The USPTO backlog is staggering. Since 2020, the unexamined application inventory has increased by nearly 50%, reaching over 800,000 applications. This delay is not just a bureaucratic inconvenience—it’s a fundamental issue for innovators who need reliable, enforceable patent rights. The new USPTO leadership is focused on clearing the backlog by shifting examiners back to examining and eliminating distractions. But for patent professionals, the challenge remains: How do you move prosecution forward in this environment?

The impact of the backlog on patent prosecution

Patent pendency is now one of the most pressing issues in the industry. For applicants with an IND filed, the clock is ticking. Delays in patent issuance mean a shorter effective patent term, which can have major business and investment implications.

The backlog also increases costs. Continuation fees are rising, and attorneys are spending more time navigating office actions, terminal disclaimers, and examiner delays. Meanwhile, recent judicial resignations at the PTAB mean appeal timelines may face additional uncertainty.

Given these challenges, patent professionals need to adopt strategic approaches to keep prosecution moving.

Strategies to avoid getting stuck

1. Write strong, clear claims

Examiners favor a tight, narrow set of claims. Writing claims that are well-structured and easy to examine can reduce the risk of unnecessary rejections and delays. Dependent claims with varying scopes provide flexibility, allowing room for amendments if needed.

2. Appeal when necessary

A growing number of applicants are finding that appealing to the PTAB is a faster path to allowance. Many examiners issue only one non-final rejection before proceeding to a final rejection. Appeals add additional scrutiny, often leading to more favorable outcomes. Advanced examiner analytics from Juristat can help identify when an appeal is the best course of action.

3. Use fast-track programs

Track One prioritized examination can significantly reduce pendency, but preparation is key. Applications must be complete with a fully developed IDS to prevent further delays. Leveraging workflow automation for office action responses and IDS preparation can ensure that applications are submission-ready without unnecessary administrative delays.

4. Leverage examiner analytics

Not all examiners approach prosecution the same way. Some are more likely to allow cases after an RCE, while others favor appeals. Understanding examiner tendencies with advanced analytics, like those provided by Juristat, allows attorneys to tailor prosecution strategies for the best possible outcome.

A changing USPTO—what it means for patent professionals

The USPTO’s new leadership is actively working on reducing pendency. Their approach includes shifting examiners back to examining, reducing administrative burdens, and meeting daily to discuss production expansion. However, this alone will not immediately solve the backlog. The system remains slow, costly, and unpredictable for applicants who need reliable IP rights.

Meanwhile, Congress is considering three major bills—PREVAIL, PERA, and RESTORE—that could change PTAB processes, examiner oversight, and patent enforcement. While reform efforts continue, patent attorneys must focus on what they can control: how they draft, prosecute, and manage their applications.

Stay ahead with data-driven prosecution

Patent professionals can’t afford to wait for system-wide fixes in an uncertain political climate. The best way to navigate the backlog is through strategic prosecution and the use of data-driven tools. Examiner analytics, workflow automation, and well-planned appeal strategies can make the difference between a stalled application and a granted patent.

Want to know how these issues impact your patent practice?

Schedule a meeting with our team to discuss how Juristat’s analytics can help you navigate today’s patent landscape.