Clients often ask us why it takes so long to get a patent. A report the Government Accountability Office (“GAO”) released on November 5, 2026 – U.S. Patent and Trademark Office: Patent Backlog Reduction Efforts Pose Risks to Examiner Retention and Examination Quality (GAO-27-108491) – offers part of the answer, along with some cautions about where things are headed. A copy of the report can be found here: https://www.gao.gov/products/gao-27-108491.
The Numbers
According to the GAO, the backlog of unexamined patent applications awaiting a first decision from the USPTO was about 838,000 in January 2025. In September 2025, the USPTO announced a goal of bringing the backlog under 599,000 – a level last seen in 2020 – without setting a time frame. To get there, the agency is requiring examiners to review more applications, has decreased examiner training and has expanded its use of artificial intelligence (“AI”) search tools.
There has been progress on the headline number. By August 2026, the backlog was down to about 756,000. However, the average wait for a final patentability decision had increased 11 percent since January 2025, and applicants have recently waited more than 20 months just for a first office action.
The bigger concern is people. Examiner attrition rose from 2.9 percent in fiscal year 2020 to 7.6 percent in fiscal year 2025, and it was still 7.6 percent as of August 2026. The GAO concluded that the USPTO is unlikely to reach its backlog goal before 2031 unless it brings attrition down. Stakeholders told the GAO that the current approach may not be sustainable, poses risks to examination quality and relies on AI search tools that are not yet reliable for patent searching. The GAO also noted that the USPTO paused a survey that measured stakeholder views on examination quality, and that the agency did not provide information the GAO requested. The report makes one recommendation: that the Director assess and address the risks the backlog effort poses to examiner retention and examination quality.
Why This Matters to Patent Owners
An examiner with less time, less training and less experience is more likely to miss relevant prior art. In the short term, that may look like good news for applicants – fewer rejections, faster allowances. In our experience, it is not. The goal of the examination process is not simply to get a patent, but to get a patent that will withstand validity challenges. A motivated infringer will find prior art that an examiner missed and will use it to invalidate the patent, whether in an ex parte reexamination, an inter partes review (“IPR”) or in litigation. A granted patent is presumed valid. It is not proven valid.
The longer waits matter too. You cannot enforce a pending patent application. Longer wait times provide competitors with more time to infringe without consequence. So, hopefully, the USPTO will develop a plan to reduce backlog without significantly sacrificing quality.