A patent application is filed in the Patent Office. The Patent Office is divided into art units that specialize in particular branches of technology, and each application is classified and assigned to an Examiner in the appropriate art unit. The Examiner usually takes the applications in the order in which they were filed. The Examiner reviews the application to make sure that it complies with the myriad of regulations governing the form and content of the application. The Examiner then conducts a search to determine whether the invention described in each of the claims is novel and non-obvious. The Examiner reports the results of the examination in an Office Action.[1] The average time to receive a first Office Action is about 17 months in 2021.
The patent regulations impose a duty of candor on anyone connected with an application to disclose any information they are aware of which is material to the examination of the application.[2] Information is material if a reasonable Patent Examiner would consider the information relevant in deciding whether to allow the application. Failure to meet this duty of candor can result in the patent being held invalid or unenforceable. Moreover, damages may be awarded against a patent owner who attempts to enforce a patent knowing that material information was fraudulently withheld.
[1] 35 U.S.C. §132, provides in part “Whenever, on examination, any claim for a patent is rejected, or any objection or requirement made, the Director shall notify the applicant thereof, stating the reasons for such rejection, or objection or requirement, together with such information and references as may be useful in judging of the propriety of continuing the prosecution of his application.”
[2] 37 C.F.R. §1.56.