The patent cost varies widely, as you can see if you do any sort of online patent research. The primary reason for the wide variance in patent cost is due to the fees charged by attorneys. The governmental filing fee is relatively a small percentage of the overall patent cost for getting a patent. In general, you get what you pay for. The goal here is to help you to understand the costs better and how to get the most out of the money that you do spend on a patent attorney. If you want help in a process of selecting a patent attorney, read more about it in Who can help you get a patent? or the section below on selecting your patent attorney.
- Budgetary patent cost to get a patent versus patent pending status
- How to get a fixed fee quote for a patent application?
- Why does the cost of the patent application depend on the complexity of the invention, the business and the goals of the inventor?
- How to select and interview an attorney to get a price quote for a patent application?
- Online provisional patent application services
- Strategy to plan for future legal expenses: Understand patent cost framework
- Cost must be balanced with value
- The single most important strategy for controlling patent cost
- Issue fees and Maintenance fees
- Building up a patent portfolio
- Appeals to the Patent and Trademark Appeals Board (PTAB)
- Encouragement for inventors and startups
- Governmental fees
Budgetary patent cost to get a patent versus patent pending status
The budgetary cost to get a patent is about $7000 to $20,000. This represents the overall cost to get a patent from patent pendency (i.e., filing of a patent application) to issuance of a patent. The budgetary cost to get patent pending status on your invention is about $5,000 to $10,000. This cost includes the cost of preparing a comprehensive explanation of your invention and filing it with the United States Patent and Trademark Office.
Online companies do charge significantly less than $5,000 to $10,000 for a provisional patent application. However, they do not include a comprehensive disclosure of your invention. It will include a skimpy explanation of your invention. That is how they can get the cost of filing the provisional patent application so low.
Of the two budgetary numbers, the cost to secure patent pendency is a more important number than the cost to get a patent for many inventors and startups. Find out more below in the framework of the patent cost section below. The cost to secure patent pendency is at a minimum the cost to prepare and file a provisional patent application with the USPTO.
How to get a fixed fee quote for a patent application?
If you want to get fixed-fee pricing for a patent application, I suggest that you call a patent attorney and schedule an initial consultation.
The specific patent cost to get a patent or secure patent pending status can only be given after an initial consultation. To provide an accurate quote that would give the inventor what they need based on their unique business situation, patent attorneys need to understand the following factors:
- The complexity of the invention,
- The business, and
- The goals of the inventor.
The patent cost to prepare a patent application is not based solely on the complexity of the invention. There are other factors, but the ones listed above are probably the most important based on my experience working with inventors.
During the initial consultation, the patent attorney will gather the right information and probe you for the answers that they need to give you an accurate quote. In my practice, I use what I call the Seven Core Patent Concepts as a tool to help me understand the invention and the potential client better so that I can give a more accurate price.
Over the first phone call, you will usually not be able to settle on a fixed fee or price with the attorney to prepare and file a patent application on your invention. If you do, I suggest that you hang up and call another patent attorney.
Pricing for a patent application is similar to a price estimate for fixing a car. A mechanic cannot tell you the cost to fix a car just by its symptoms. They might have a guess but they will need time to diagnose the problem. Likewise, a patent attorney needs to understand the factors mentioned above to provide an accurate price quote.
Why does the cost of the patent application depend on the complexity of the invention, the business and the goals of the inventor?
The cost of the patent application may change because they (complexity, business and inventor’s goals) determine in part the amount of work that the patent attorney must do to try to meet the expectations of the inventor and startup.
Complexity of invention
The cost of a patent application in general is a function of the complexity of the invention. The more complex the invention, the higher the patent cost, and vice versa. We would have to spend more time to include all of the details into the patent application for a complex invention. This is a simplistic way to understand the cost of a patent application and would not always be true. Sometimes, the simplest of inventions may cost more than a complex invention. Let me explain. When an invention is complex, the patent attorney does not need to work as hard to set up the structure of the patent application. When the invention is very simple, we may need to take extra time to understand all of the nuanced benefits of the invention and to describe those aspects so that the true benefits and the structure does not get lost in the invention’s simplicity.
The business environment of the invention should be taken into consideration when estimating the patent cost of the patent application to secure patent pendency.
Goals of the inventor
The cost of a patent application has a lot to do with the goals of the inventor. For example, if the inventor wants to secure as much patent protection on the invention as possible, this would make the task of preparing a suitable patent application significantly more difficult. The work involved to give the inventor what they want may involve:
- Describing the invention in multiple ways,
- Describing all aspects of invention, and
- Presenting claims that might go over the limit covered by the basic government filing fee for a non-provisional patent application.
Because of these variables, I cannot provide a price quote for a patent application without a full initial consultation in which I learned about the invention, the business environment and also the goals of the inventor.
How to select and interview an attorney to get a price quote for a patent application?
You need to whittle down the possible attorneys beyond just conducting online research on a patent attorney. For most startups and inventors, a large law firm is overkill. Large law firms will charge an exorbitant amount of money to work with them. In my opinion, the savings that the startup or inventor would have realized by going to a mid-sized intellectual property law firm could be redirected into marketing efforts and increase the possibility of the invention being financially successful.
For a more detailed explanation, please read Who can help you to get a patent?
It would be impractical to contact multiple attorneys in your local area and hold initial consultations with all of them. You can eliminate a vast majority of attorneys by choosing the type of attorney that would be able to give you what you want and need.
Let me explain. You can categorize attorneys as belonging to three different groups – large law firms, mid-sized intellectual property law firms, and solo practitioners.
Large law firms are those law firms with hundreds of attorneys and are at multiple locations throughout the United States and even may have offices globally. In general, large law firms would charge a significantly more money than boutique intellectual property law firms and solo practitioners. In my opinion, most startups and inventors do not require the vast resources of a large law firm.
Boutique intellectual property law firms and solo practitioners are the other two types of patent attorneys. Solo practitioners have prices that range between very cheap to mid-range pricing. However, these solo practitioners may not have enough resources to handle your case. If they represent one or two large companies, they will be overwhelmed and provide priority service to those larger clients instead of smaller clients like solo inventors.
Mid-sized intellectual property law firms provide a nice balance between quality, patent cost and service. These firms consist of more than a few patent attorneys. The quality of a mid-sized intellectual property law firm is generally equal to the quality of larger law firms for the services that they provide. The cost of a mid-sized firm, although not as cheap as the cheapest solo practitioner, is competitive with that of a solo practitioner. My law firm is a mid-sized law firm, and our pricing is average among patent attorneys. Boutique intellectual property law firms also have some additional bandwidth, so that the patent attorney that you retain can shift work to other patent attorneys within the group to provide timely and cost-effective legal services.
A reasonable approach to getting an accurate idea of the patent cost estimates with respect to your invention would be to interview two or three patent attorneys within the category of attorney that you would want to retain, and ask them what the patent cost would be for them to assist you. This will give you a significantly clearer picture of the patent cost that you can expect should you proceed with the patenting process.
Online provisional patent application services
Some online patent practitioners quote a very low cost for a provisional patent application. This is done to attract inventors who have an understandable attraction to a low cost. In my point of view, you must be careful and determine if these low-cost provisional patent applications provide the full scope and type of patent protection that you need.
Let me explain. Not all provisional patent applications are of the same quality. Likewise, the same is true for non-provisional patent applications. To properly protect the invention in terms of patent pendency, the patent application needs to include the point of novelty of the invention. This is something which the patent office cannot and does not check for. If the point of novelty of the invention is not properly explained in the patent application, then even if the patent application passes the standard of the patent office, the application will not properly protect the invention so that the inventor cannot fully exploit the invention.
The USPTO only checks your patent application to determine if it passes a minimum quality standard. However, the quality of the patent application and patent, should one issue, depends on the patent attorney preparing the patent application.
Strategy to plan for future legal expenses: Understand patent cost framework
The framework to understand the patent cost is divided into two major components. These two major patent cost components relate to the preparation costs and the examination costs for a patent application.
The preparation cost includes the cost to prepare and file a patent application with the United States patent and trademark office so that your invention is patent pending.
The examination costs are incurred after the preparation costs and includes the effort to respond to office actions and hold interviews with the examiner until your patent application is either allowed, appealed to the Patent and Trademark Appeals Board (PTAB) or abandoned. In general, the preparation costs will range between $5000 and $10,000. The examination costs typically range between $5000 and $10,000.
The cost to prepare and file a patent application (i.e., get patent pending status) includes attorney’s fees, drawing fees and the filing fee charged by the Patent Office. The bulk of the cost to prepare and file a patent application comes from the attorney fees. Drawing fees will be about $200–$800. The government filing fee will be somewhere between $65 and $740 depending on the size of the entity filing and whether you are filing a provisional or non-provisional patent application.
After you file your patent application, any communication with your patent attorney will be billed out by your patent attorney as a billable event. For example, your patent attorney should communicate with you about a filing receipt from the United States Patent and Trademark office to you. They should also communicate with you about a Notice of Publication of your patent application. You must file an information disclosure statement disclosing all relevant information that might cause the examiner to reject your application must be submitted to the United States patent and trademark office. Your patent attorney should communicate these events to you and will bill out for these activities. Additionally, there are costs to conduct a novelty search which occurs prior to the filing of a patent application or any time after you receive the first office action.
The cost for novelty search will range between a few hundred dollars to $2000 depending on who conducts the search and the complexity of the invention itself. It would be more important to find the right person to conduct the search rather than a lower price. The reason is that the search is a highly subjective process and having the right person to apply their judgment that they acquired from years of experience will help you to better understand the risk of proceeding with the patent process in securing a patent. If you have a patent attorney conduct a formal novelty search, then the preparation costs estimated above will increase by the cost of the novelty search.
How to use the patent cost framework to forecast costs of patenting your invention?
To forecast patent costs, you need to understand that the bulk of the preparation costs will be incurred at the start when you retain a patent attorney to prepare and file a patent application on the invention. The preparation costs will be incurred over a span of one or two months.
The examination costs begin to be incurred somewhere between four to six months, if the non-provisional application was filed with a prioritized examination request, and up to one to three years, if not. As you can see, you will have a large expenditure when you retain a patent attorney to prepare and file your patent application on your invention.
For most businesses or startups, I generally recommend delaying the cost for examination as much as possible, and not request prioritized examination. The reason is that after securing patent pending status, the inventor or startup can now safely market his or her idea. The market may not receive the idea well. In this case, the inventor would not want to incur examination costs, because these would go to waste when the business fails. As such, the more time it takes to get the first office action from the USPTO may be beneficial, in that the inventor can use that time to test market the invention. In this way, up-front legal fees are minimized while the examination costs are delayed, until a time when marketing of the inventor shows that it would be prudent to spend more money on the examination process.
If for some reason, the expedited issuance of the patent is of utmost important to the inventor, such as if the inventor wanted to primarily make money from the invention by relicensing, then the examination costs can be incurred earlier by filing a request for prioritized examination. The basic idea is that the marketing should justify further patent legal costs. As noted above, the examination costs would be incurred about four to six months after securing patent pending status.
If you see all of the possible costs for the patenting process, you might think that it is too expensive to get a patent. The framework through which you should view the patent costs is to divide the costs between preparation costs and examination costs. Normally, you will pay the preparation costs and the goal is to allow the profits of the business to pay for the later examination costs, issue fee, maintenance fees and the costs to build a patent portfolio. It doesn’t always happen, but that is the goal.
Cost must be balanced with value
You can interview a number of patent attorneys to get an accurate measure of the price for the patent. However, the cost to prepare and file a patent application is not directly related to the value of the patent application. Just because two patent applications from two separate attorneys will cost the same does not mean that the quality of the patent applications produced by those two patent attorneys will be the same.
Let’s talk about the patent application itself. There are different ways to prepare the patent application. One way would be to provide a straightforward discussion and explanation of the invention. What would happen here is that the patent attorney would merely spend as little time as possible to think outside of the box to see the bigger picture of the invention. Even if the attorney spent as little time to think outside of the box to see the big picture of the invention, he or she is providing a basic patent application. Other patent attorneys will try to immerse themselves into the invention to find additional benefits and features that the inventor themselves did not think about. They will also include these features into the patent application. Both attorneys can charge the same amount of money but both applications will not be of equal value. Obviously, the latter patent attorney will provide better value for the patent cost incurred by the inventor.
Unfortunately, inventors may not be able to understand or decipher which patent attorney they should retain. I was in a similar circumstance when I retained an attorney to help me prepare my will and set up my family trust. I interviewed two or three attorneys and asked for their pricing. Even though I scored high marks in law school and my wills and trusts class, my education did not prepare me to understand the nuts and bolts of preparing the will and setting up a family trust. The bottom line was that I was unable to determine which attorney provided the best value for the patent cost. However, my education did help in that I was able to make an educated guess as to which attorney could do the job at the lowest price. From that moment, I empathized with my clients – inventors better. Inventors are just like me. They don’t want to pay more than what they have to get what they need. I changed my practice in order to help inventors understand not only to give them what they want but also to let them understand what they need to properly secure patent protection for their invention.
Education is important in my family. When my parents immigrated from Korea in 1972, they spoke little English, but one thing that they taught us was that we must get an education. In an effort to educate inventors so that they can make a better decision, my belief is that they need to have a working knowledge of the patent system. Otherwise, how would they tell whether a patent attorney is providing good or bad advice? To this end, I’ve published my book Navigating the Patent System and provide numerous free resources on this blog to help inventors understand the patent process so that they can make smarter decisions, more cost effective decisions for themselves.
The single most important strategy for controlling patent cost
The most important strategy to help save on patent cost is to properly identify the point of novelty of an invention. If the point of novelty is properly identified, then the novelty search, focus of the patent application, arguments presented to examiners and the continuing patent application that you might file to build a patent portfolio (see discussion below) will all be focused on the point of novelty. Ancillary features of the invention may be dropped out of the equation and save you time and money. The bottom line is that you need to accurately identify the point of novelty of the invention to streamline patent prosecution and save on costs.
Issue fees and Maintenance fees
During examination of a patent application, the patent examiner at the USPTO will render a notice of allowance if the examiner believes that the invention is worthy of a patent. You must also pay the issue fee to secure the patent grant. The cost of the issue fee is somewhere between $500 and $1000 depending on the service fees charged by your patent attorney. After the patent is granted, must pay three maintenance fees to keep your patent forcible. These maintenance fees are due at the 3 1/2 year, 7 1/2 year and 11 1/2 year anniversaries calculated from the patent grant date. These maintenance fees will cost somewhere between $800 and $2000.
Building up a patent portfolio
If you believe that your invention is valuable, then it may be worth it to secure additional patents on your invention based on the original application that was filed to secure the first patent on your invention. This is done by filing a series of continuing applications. The continuing application may be a continuation application, a divisional application or a continuation-in-part application. The continuing application is a refiling of your original application with a new set of claims that are different from those claims that have been issued. Typically, the subsequent continuing application may contain claims that are either slightly broader than what was allowed in your first patent, or is filed as a divisional application, which seeks to protect your invention from a different aspect or angle. The cost to build up a patent portfolio around your invention is expensive and thus I recommended it only for inventions that are either making the inventor money or for one reason or another inventor has not yet had time to sufficiently market the invention and determine whether it would be financially valuable to continue broadening the patent protection by filing the continuing applications. On a yearly basis, building a patent portfolio around the invention, would cost at least somewhere between $3,000 to $10,000.
Appeals to the Patent and Trademark Appeals Board (PTAB)
If during the examination process, the examiner continues to reject your application for patent, you have the option to appeal the decision of the examiner to the Patent and Trademark Appeals Board (PTAB). This is an independent body of judges that determines whether the examiner applied the right or wrong standard when rejecting your patent application. The cost to appeal your case will be somewhere between $5000 and $20,000, depending upon the complexity of the arguments that needs to be presented to convince the judges at the patent and trademark appeals board. Be aware that there are no guarantees of success.
Encouragement for inventors and startups
The above explanation of all of the costs involved in the patenting process can seem daunting. However, the basic strategy still remains the same. Usually the inventor should or normally will bear the cost for preparing and filing a patent application to secure patent pending status. After patent pending status is achieved, in general there are no other significant patent costs until the examination of your patent application starts. This means that the cost that you should be primarily concerned about is the preparation costs, not the other cost mentioned above. I mentioned them in order to inform you they exist. However, the most important cost that you should be aware of the cost to achieve patent pending status. That cost is usually between $5000 and $10,000 for many inventions. Do talk with your patent attorney on ways to cut down costs for the preparation of your patent application.
For more information, please read Highs and lows of the patent process.
Everyone is a large entity unless you qualify as a small entity or a micro entity.
You qualify as a small entity if you have 500 employees or less. When you are counting the number of employees, you need to include part-time employees. If you are close to being a large entity but could technically qualify as a small entity, I suggest that you pay the large entity fees because of the risk of invalidating your own patent just to pay a small discount in the overall scheme of business and patent cost.
Small entities pay a 50% discount off of the large entity fees. If you are a small or micro entity but grow so that you employ more than 500 employees or license your patent to a large entity, then you need to pay the large entity fee when paying the issue fee or any of the maintenance fees.
Micro entities are those that have filed less than 4 patent applications and make less than 3 times the median income in the United States. The median income in the U.S. for 2017 was $57,617. Any time your situation changes or if you license your patent to a small or large entity, you need pay the appropriate small or large entity fee.
Related article: Large, small and micro entity definitions