What is the Patent Application Cost?

The patent application cost in the United States is relatively nominal but can still cost thousands of dollars, if not hundreds of thousands of dollars, and take decades to get one. The application fees that are assessed by the United States Patent and Trademark Office (USPTO) to analyze submitted inventions are often but a fraction of the legal fees charged by attorneys and other professionals to prepare the application. Since those fees can vary with the complexity of the application, there is no definitive framework to predict patent costs in the U.S.

But there is this certainty: According to the National Research Council, no matter how much it costs or how long it takes to secure one, up to 97 percent of patents will ultimately generate less in revenue than they cost to procure.

What Can Be Patented

It is critical to acknowledge right from the start of any patent application that a prospective inventor recognize that the product or process must be unique relative to any predecessor patents. U.S. patent law states that anyone who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.”

The USPTO lists four criteria for securing a patent:

  • Must be “patentable.”
  • Must be “novel” or “new.”
  • Must have “some utility” or be “useful.”
  • Must “not be obvious.”

U.S. patent law defines something as “patentable” if it is a process, a machine, a manufactured article or a “new composition,” such as a newly-created pharmaceutical. Contrary to what many believe, an “idea” is not patentable unless it is an “idea” that creates or a “patentable” process, machine, manufactured item or composition.

Generally, this means that abstract ideas, laws of nature, physical phenomena, mathematical formulas, naturally-occurring substances, and anything done entirely with the human body, such as a new technique for throwing a slider in baseball, cannot be patented. However, some “products of human labor,” such as works of art, including paintings, novels, and songs be copyrighted.

Patent costs are also highly dependent on the degree of complexity of your invention. The majority of inventions typically range from relatively simple to minimally complex. If you are dealing with something like a software, however, it will most likely be highly complex due to courts requiring very detailed technical information in the patent application for a chance to get and maintain a software patent.

File Patent Applications Yourself

Filing a patent application yourself can save you a lot in costs, but it does require a considerable amount of work and research. There are minute details that a trained professional would be able to help you with, but if you are willing to take the risk, you should start with a patent search. Utilize Google and social networks to search patents, academic papers, websites, and get in touch with people in the same technical field. This will help you make intelligent decisions before you even meet with a lawyer. To draft your own patent application, find a patent that is similar to your invention and use it as a template. Record your process, make drawings, and describe details of your invention.

Different Types of Patents

The first decision to make in applying for a patent is what type of patent is most suitable for your product. Generally, the fire are two different types of patents in the United States:

  • Utility Patent: The most common type of patent, this type of patent addresses function. To receive a utility patent, a product must demonstrate different and specific functional aspects in performance than existing products or processes do. This patent protects a unique product for 20 years.
  • Design Patent: Whereas the utility patent is about function, a design patent is about form. It specifically addresses “the ornamental design for an object having practical utility.” Examples include The style of the style of eyeglass frames, airline passenger seats, penny loafer tassels, even pretzels. This patent protects a unique product for 14 years.

Different Types Of Patent Applications

The actual application process is relatively straight-forward. Generally, prospective inventors have two options in filing for a patent:

  • Provisional Applications: These are the “patent pending” designations occasionally seen on products. They are, essentially, “placeholders” in the sense that the applicant has secured a filing date, which gives the prospective product precedence over potential competitors, but it has not been officially submitted to the USPTO for ultimate scrutiny. This allows patent applicants up to one year to assemble all support material and to determine if the product is viable.
  • Non-Provisional Applications: This is the formal patent application that initiates the USPTO review. It means the applicant has provided all the necessary information, made the case, and now it is in its completed state and ready for consideration. Products cannot receive a patent without its non-provisional application being formally approved by the USPTO.

Application & Patent Fees

Independent inventors and small business that apply for patents could, potentially, secure one for as little as $900, although it is highly implausible and, thus, rarely achieved. The basic breakdown $330 for a utility patent application, a $220 examination fee, and up to $540 for a utility patent search fee. Other fees:

  • Provisional Patent Application Fee: $65.
  • Non-Provisional Patent Application Fee: $400, search fee.
  • Patent Issue fee: Can range from $450 to $1,185 for a “small entity,” and up to $2,070 for a “large entity,” including formal publication of patent. 

Once the USPTO issues a patent, the owner is responsible for paying maintenance fees 3½, 7 ½, and 11½ years after issuance. The current large entity/small entity maintenance fees are $1,150/$575 at 3½years; $2,900/$1,450 at 7½ years and $4,810/$2,405 at 11½ years.

Now For The Real Costs

If only the process was so simple and relatively inexpensive, but it isn’t. In the real world, filing a patent application is often the end of one process and the beginning of another often long and tedious excursion into technicalities and bureaucracy, and potentially, costly litigation.

While there are many factors that can influence how much an inventor will have to spend in hiring legal and professional assistance to secure a patent, the complexity of the application and the marketability of the product being patented are certainly among them.

A patent in a biomedical pharmaceutical product, for instance, could cost hundreds of thousands of dollars and take a decade to be approved. Among the reasons why the process could be so elongated, other than the scientific intricacy involved, is the product’s promising market potential. There is a good news, bad news scenario with any potential new product that could affect an existing market and, rest assured, those who benefit from the existing market keep a close eye out on emerging challenges and, when possible, do all they can to kill it in the womb, which is in the USPTO, or in the courts.

A patent application can be derailed by any one of an array of minor mistakes. Even the most thoroughly precise applications can be nixed by patent examiner’s ruling to the USPTO’s internal review board. Even issued patents get challenged by rival inventors and potential competitors in federal courts.

The cost of revising applications, defending patents, challenging lawsuits and maintaining the integrity of the patent all require the assistance of professionals, including USPTO-registered patent attorneys.

A patent lawyer, although can charge between $200 and $400 an hour, can actually save a patent applicant a great deal of money. Namely, they can analyze a prospective patent application right from the beginning to determine if it is worth, at least, between the $5,000 and $10,000 it will cost for an independent inventor to bring his product from bench to brand.

Except in rare cases, all these resources are necessary to be successful in the contemporary patenting environment. Decades of U.S. Supreme Court, U.S. Appeals Court and U.S. District Court rulings have created landmines of legal entanglements that an unwitting inventor can inadvertently stumble into and risk not only the potential patent, but end up being sued for even applying for one. A complex matrix of regulations imposed by Congress, as well as administrative rules orchestrated by the USPTO, has made applying for patents in most cases to be a highly specialized and complicated procedure.

In many ways, the system is rigged against the individual, independent inventor who can follow all the rules and scrupulously adhere to the procedural requirements of the application process, even overcome technical nitpicking and bureaucratic setbacks, only to be challenged in court by a corporate entity with the unlimited resources to suppress a new product from ever getting to the market, essentially bankrupting an individual who had the temerity to have a good idea.

Therefore, not only can a USPTO-registered attorney truly analyze the commercial viability of a product, but be an advocate in defending the integrity of a patent. Unfortunately, court challenges have become almost a standard component of the patent process, especially of a product is, indeed, truly innovative.

Why So Much?

A patent attorney is not simply a lawyer who is interested in shepherding new ideas and inventions through the process of legal validation in anticipation of commercial viability.

To be a patent attorney, a lawyer must pass an examination to be officially certified and registered as such with the USPTO.

In addition, registered patent attorneys must demonstrate to the USPTO that they are “of good moral character,” have unblemished reputations, and the legal, scientific and technical knowledge necessary to evaluate prospective inventions. In fact, in addition to law degrees, the USPTO requires patent attorneys to have at least bachelor of sciences degrees in engineering or a physical science.

Many USPTO-registered patent attorneys are specialists in high-tech, biotechnology or computers. Some even have PhDs in specific disciplines. They often bring with them technical experts and professionals, such as illustrators for designs. 

Applicants Can Keep Costs Down

There are steps patent applicants can take in reducing the costs of filing a patent even before they make an appointment with a USPTO-registered patent attorney. Among these things is to do much of the preliminary investigatory work yourself.

For instance, anyone can conduct a patent search through Google, by subscribing to services as JSTOR to access academic papers, and by haunting the nearest Patent and Trademark Depository Library (PTDL) to access their files and query on-site search experts on how to find what you are looking for. Patent searches can be tedious because they require repeated keyword searches of databases that store all patents dating back to 1790. For the ultimate self-conducted patent search, visit the USPTO Search Center in Alexandria, VA.

For advice on how to keep patent costs down and assistance in patent searches, seek out other inventors, authors and small business owners to pool intellectual resources and share advice and experiences all can benefit from. There are a wide range of social media groups committed to aiding and abetting the efforts of independent innovators in bringing their ideas to fruition.

Another idea is, rather than hire an attorney until it is necessary, contract a registered patent agent to help you conduct your search and in putting together your preliminary patent package.

A patent agent can do most of the same things a patent attorney can. In fact, the USPTO-certification for patent attorneys actually is, officially, as a “patent agent.” Patent agents can prepare applications and carry it through the process as well as an attorney can. In most cases, they can be less expensive.

However, since patent agents are not attorneys, they cannot litigate in courts in patent lawsuits, draw up contracts, authorize licensing and trademark agreements.  The bottom line is while a patent agent could be a less expensive option in being a hands-on patent processor, sooner or later, you’ll need to hire a patent attorney.

If you need help determining how to proceed in submitting a patent application, you can post your legal needs on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.