How much does a Patent Cost?
By: Brian Downing | Published on: 09/03/2024
This article explains the cost of obtaining a utility patent.
Table of Contents
- Summary
- Introduction
- Patent Preparation and Filing with the USPTO
- USPTO Examines the Patent Application
- Respond to USPTO
- What if Non-Provisional Patent Application is too Expensive?
- Why do Estimates for the Cost to Obtain a Patent Vary so Much?
- What if want to Patent Outside the U.S.?
- Changing USPTO Fees
1. Summary
The two categories of fees to obtain a patent are:
a. U.S. Patent and Trademark Office (USPTO) Fees.
b. Legal Fees (If choose legal services).
The total cost of obtaining a patent is difficult to predict. The most challenging aspect to predict is how much effort will be required to work with the USPTO to obtain the patent.
Below are a few examples that include the estimated cost and estimated time at each step of the patenting process. The actual cost and time of obtaining a patent may vary.
Example 1: Professional Drafted Patent
Assumptions:
a. Small Business. USPTO refers to a small business as a small entity.
b. Three back and forths with the USPTO to obtain the patent. The actual number of back and forths with the USPTO can vary. In the high tech areas Stellar Patent® practices in, the average number of responses to the USPTO is a little over three.
c. Medium complexity invention and the USPTO raises standard issues. The legal fees can vary depending on the complexity and number of issues raised by the USPTO.
| Month | Description | USPTO Fee | Professional Fee | Sub-total | Total |
|---|---|---|---|---|---|
| 0 | Initial Filing | $728.00 | $10,000.00 | $10,728.00 | $10,728.00 |
| 18 | First Office Action | $0.00 | $0.00 | $0.00 | $10,728.00 |
| 21 | Office Action Response | $0.00 | $3,500.00 | $3,500.00 | $14,228.00 |
| 24 | Final Office Action | $0.00 | $0.00 | $0.00 | $14,228.00 |
| 27 | Final Office Action Response and Continuation | $544.00 | $3,500.00 | $4,044.00 | $18,272.00 |
| 30 | Notice of Allowance | $0.00 | $0.00 | $0.00 | $18,272.00 |
| 32 | Pay Issue Fee and Finialize Application | $480.00 | $500.00 | $980.00 | $19,252.00 |
| 33 | Patent Issues | $0.00 | $0.00 | $0.00 | $19,252.00 |
| Totals: | $1,752.00 | $17,500.00 | $19,252.00 |
Example 2: Do-it-yourself (DIY) Patent
Assumptions:
a. Small Business. USPTO refers to a small business as a small entity.
b. The inventor drafts the patent application and represents themself before the USPTO.
c. The patent application is allowed by the USPTO after the first examination. This rarely happens in practice.
| Month | Description | USPTO Fee | Professional Fee | Sub-total | Total |
|---|---|---|---|---|---|
| 0 | Initial Filing | $728.00 | $0.00 | $728.00 | $728.00 |
| 18 | Notice of Allowance | $0.00 | $0.00 | $0.00 | $728.00 |
| 21 | Pay Issue Fee | $480.00 | $0.00 | $480.00 | $1,208.00 |
| 22 | Patent Issues | $0.00 | $0.00 | $0.00 | $1,208.00 |
| Totals: | $1,208.00 | $0.00 | $1,208.00 |
2. Introduction
The three types of patents are utility, design, and plant patents. When someone says "patent" they generally mean a utility patent. Only a non-provisional patent application can become a patent. A provisional patent application is essentially a one year placeholder for a non-provisional patent application. This article is for a non-provisional utility patent and assumes a provisional patent application was not filed.
If you are not familiar with the patenting process, you can read our article Overview of Patenting
Working with the USPTO has many unknowns:
a. The USPTO will examine the patent application in due course. With the normal patent application filing, the USPTO puts patent applications in a queue and then examines the patent application when it rises to the top of the queue. The USPTO's goal is to examine a patent application within eighteen months of filing. Some technologies get a faster examination while other areas take longer to examine. The time before the USPTO examines the patent application depends on the backlog of applications within the USPTO and the number of examiners the USPTO has in the technology area.
b. The amount of time to work with the USPTO to get the patent application into condition for allowance is unknown. The number of back and forths with the USPTO, what the USPTO considers similar inventions, and how difficult the USPTO Patent Examiner will be to work with are unknown.
The inventor(s) or company that is assigned the rights to the patent application is called the Applicant.
3. Patent Preparation and Filing with the USPTO
USPTO Fees
To encourage patent filing, the USPTO offers discounts for small businesses and independent inventors.
The USPTO has three fee structures: Fee, Small Entity Fee, and Micro Entity Fee. The services the USPTO offers are the exact same for all three fee tiers.
A small entity generally has less than 500 employees or is a non-profit that has not assigned the invention to a company that has over 500 employees. A micro entity generally is a small entity where the entity and each inventor have filed less than four patent applications, and the entity and each inventor's gross income is less than three times the median household income. The actual rules are more complex.
When filing a non-provisional patent application, the USPTO requires fees for filing, search, and examination:
| 35 CFR § | Description | Fee | Small Entity Fee | Micro Entity Fee |
|---|---|---|---|---|
| 1.16(a) | Basic filing fee - Utility | $320.00 | $128.00 | $64.00 |
| 1.16(k) | Utility search fee | $700.00 | $280.00 | $140.00 |
| 1.16(o) | Utility examination fee | $800.00 | $320.00 | $160.00 |
| Totals: | $1,820.00 | $728.00 | $364.00 |
For an additional fee, the USPTO Track One Program will expedite the examination of the patent application. With Track One, the initial examination is performed within one year. The normal filing fees plus the Track One fees are:
| 35 CFR § | Description | Fee | Small Entity Fee | Micro Entity Fee |
|---|---|---|---|---|
| 1.16(a) | Basic filing fee - Utility | $320.00 | $128.00 | $64.00 |
| 1.16(k) | Utility search fee | $700.00 | $280.00 | $140.00 |
| 1.16(o) | Utility examination fee | $800.00 | $320.00 | $160.00 |
| 1.17(c) | Request for prioritized examination | $4,200.00 | $1,680.00 | $840.00 |
| 1.17(i)(1) | Processing fee, except in provisional applications | $140.00 | $56.00 | $28.00 |
| Totals: | $6,160.00 | $2,464.00 | $1,232.00 |
Legal Fees
The legal fee to draft a patent application is typically:
a. Approximately $5,000.00 for a simple invention
b. Approximately $10,000.00 for a medium complexity invention
c. Approximately $15,000.00 for a complex invention
The initial drafting cost is usually easy to predict since this only depends on the invention, the inventor(s), and the person drafting the patent application. At times, drafting a patent application can take extra time when the inventor(s) add to their invention after they read drafts of the patent application.
Some inventors and small companies may qualify for free or low cost legal help through the USPTO Pro Bono Program. Learn more about the USPTO's Patent Pro Bono Program.
An inventor has the right to draft a patent application themself. In this case, the legal fees would be $0. When inventor(s) draft the patent application themself, they are called a Pro Se inventor. The USPTO has a Pro Se group to help inventors meet the formality requirements of the patent application. The USPTO cannot provide legal advice. The USPTO can help with such things as the required sections of the patent application and the forms required to be submitted with the patent application. There are various resources to help a Pro Se inventor, such as DIY patent software and books.
4. USPTO Examines the Patent Application
The USPTO's goal is to examine a patent application within eighteen months of filing. Depending on the number of patent applications in a given technology area, some patent applications take longer before the USPTO examines the patent application. Similarly, some technology areas can be examined in less than eighteen months. Patent applications are put in a queue based on their technology area when filed and examined when an application rises to the top of the queue.
If the expedited Track One examination is selected, the USPTO will typically examine the patent application within six months.
Once the USPTO examines the patent application, the USPTO will inform the inventor(s) or their representative of the USPTO's decision.
5. Respond to USPTO
The USPTO will either allow the patent application or not allow the patent application. With a typical patent application, there are multiple back and forths with the USPTO before the patent application is allowed. The legal word for this back and forth with the USPTO is Patent Prosecution. As the number of back and forths with the USPTO and the complexity of the issues that will be raised by the USPTO is not predictable, the cost of this phase in the patenting process is not predictable.
Patent Application Allowed
When the patent application is ready to issue into a patent, the USPTO will issue a Notice of Allowance (NOA). After the issue fee is paid, the patent will issue shortly. The issue fees are:
| 35 CFR § | Description | Fee | Small Entity Fee | Micro Entity Fee |
|---|---|---|---|---|
| 1.18(a) | Issue Fee - Utility | $1,200.00 | $480.00 | $240.00 |
Depending on the status of the patent application, more legal time may be needed to close out the patent application. When needed, this is typically $500.00. This fee may include a final review of the patent application before paying the issue fee and an analysis to evaluate the possibility of filing continuation applications.
Patent Application Not Allowed
When the USPTO does not allow the patent application, the USPTO will issue an Office Action (OA) with reasons why the patent application is not patentable in its present state. A response that includes amendments and/or arguments may be submitted to the USPTO. Amendments must be supported by the originally filed patent application.
The initial patent application filing fees include two examinations. The first examination was the examination that the USPTO performed before issuing the first OA. In response to the OA, an Applicant will typically file a response and the USPTO will perform the second examination. If the USPTO issues a second OA, the second OA will most likely be made final. Final means all the USPTO fees have been used and the Applicant needs to pay more money to the USPTO to continue examination. Typically, a Request for Continued Examination (RCE) is filed when the OA is made final. The RCE costs for the first RCE are:
| 35 CFR § | Description | Fee | Small Entity Fee | Micro Entity Fee |
|---|---|---|---|---|
| 1.17(e)(1) | First Request of Contiued Examination (RCE) - Utility | $1,360.00 | $544.00 | $272.00 |
The RCE costs for the second and subsequent RCEs are:
| 35 CFR § | Description | Fee | Small Entity Fee | Micro Entity Fee |
|---|---|---|---|---|
| 1.17(e)(2) | Second and Subsequent Request of Contiued Examination (RCE) - Utility | $2,000.00 | $800.00 | $400.00 |
Stellar Patent®'s experience in the high tech areas we practice in, is that the average number of RCEs per patent application is a little over one.
The legal fee to respond to an Office Action is typically:
a. Approximately $500.00 for a simple response
b. Approximately $3,500.00 for a typical response
c. Approximately $5,000.00 for a complex response
After the second or later OA, an appeal may be filed with the USPTO's Patent Trial and Appeal Board (PTAB). There is an additional cost in both the USPTO fees and legal fees with appealing to the PTAB.
Just as the inventors may file the patent application themselves, the inventors may file the response themselves so long as they do not have patent practitioners (i.e., patent attorneys and patent agents) representing them.
Alternatively, a response to the OA may not be filed with the USPTO. In this situation, the patent application will generally become abandoned six months after the OA is issued.
6. What if Non-Provisional Patent Application is too Expensive?
Consider the USPTO Pro Bono program to receive free or low cost legal help. Learn more about the USPTO's Patent Pro Bono Program.
Consider filing a provisional patent application.
7. Why do Estimates for the Cost to Obtain a Patent Vary so Much?
When comparing the cost of obtaining a patent, a wide variation in costs may be found. The following are potential reasons for the variation in cost:
a. Complexity of technology. The more complex technologies can add additional time to the patent drafting process, and the more complex technologies may require more time to work with the USPTO.
b. Different opinions about the time required to obtain a patent. This includes the time required to draft the patent application, and how many back and forths with the USPTO will be required to obtain the patent.
c. Patent practitioners (i.e., patent attorneys and patent agents) have different cost structures. The larger firms typically have class A real estate with expensive furniture and a larger support staff. Virtual firms can have a lower cost structure and pass the savings on to the clients. Also, some cities have a higher cost of living than others.
The following are potential questions for the patent practitioner to compare different patenting cost estimates:
a. Will file a provisional or non-provisional patent application? A provisional patent application typically has a lower cost to prepare and has lower USPTO fees.
b. Who else will be involved in this patent application? What is their background and what is their role? The patent practitioner you speak with may not be the person who renders the legal services.
c. How much time will spend drafting the patent application?
d. What do estimate will be the number of pages and the number of figures in the patent application? How much boilerplate text and figures do plan to use? Boilerplate is generic content that the patent practitioner puts in their patent applications. We have seen patent applications where the majority of the application is generic boilerplate and is relatively sparse on details about the invention.
e. What do expect when working with the USPTO? For example, how many Office Actions do expect from the USPTO, and how many continuations (e.g., Request for Continued Examinations) do expect? As working with the USPTO is unpredictable, patent practitioners will most likely estimate what they have experienced. It's important to normalize what different patent practitioners are expecting at the USPTO to accurately compare estimates. For example, if a practitioner estimates two Office Actions and another practitioner estimates three Office Actions, then one Office Action would need to be taken away from the other practitioner to compare the two estimates.
f. Will use generative artificial intelligence (AI) to draft the patent application or responses to the USPTO?
g. If an hourly project, what is the hourly rate of each person involved?
h. Does the patent practitioner understand the technology related to the invention?
Large companies tend to pay less in legal fees for a patent. The reasons can include:
a. Large companies generally have an in-house team that performs the first few steps of the patenting process.
b. As large companies tend to file a large volume of patent applications and these applications are in a similar technology, large companies may receive a discount.
c. In large portfolios, a single patent may not be as important to the overall company strategy thus the company may be less willing to invest in a single patent. In contrast, a smaller company may invest more in a smaller number of patents to protect the core business.
8. What if want to Patent Outside the U.S.?
This article is written about obtaining a patent in the U.S. To obtain a patent outside the U.S., there are two main options:
a. File a patent application directly in each country a patent is desired in. Most countries allow a patent application to be filed within one year of the U.S. patent application filing.
b. File a Patent Cooperation Treaty (PCT) application. A PCT application is essentially an international placeholder application that allows eighteen months to file patent applications in the countries that are part of the PCT. Although the PCT application covers countries with 99%+ of the worldwide gross domestic product (GDP), not all countries are part of the PCT. A PCT application can be the first patent application filed or a PCT application may be filed within one year of filing a U.S. patent application.
The direct filing approach tends to be used when an inventor or company knows which countries they want to file a patent application in. The PCT filing approach tends to be used when an inventor or a company does not know which countries they want to file patent applications in. Generally, the PCT approach increases the overall patenting costs while giving more flexibility in which countries to file patent applications.
Stellar Patent® recommends that clients seek out someone legally competent in each country outside the U.S. they want a patent in. Stellar Patent® is legally competent to represent inventors and companies in applying for U.S. patents.
9. Changing USPTO Fees
As the USPTO frequently changes the fees, the USPTO fees in this article may become outdated. For the latest USPTO fees, see the USPTO fee schedule. A search for the CFR section listed in this article on the USPTO fee page should allow the latest fee to be quickly found so long as the USPTO has not changed which fees are due for a given service.
