Provisional Patent Filing Fee: Everything You Need to Know
It is the cost associated with filing a provisional patent application with the USPTO. 8 min read
Provisional Patent Filing Fee
What is a provisional patent filing fee? Simply put it’s the cost associated with filing a provisional patent application with the USPTO. The process is long and complex with a wide range of variables. You’ll need to know how to do your research, what exactly you’re trying to patent, and specifically why you need a provisional patent application instead of a regular one.
Obtaining Patent Cost
It is difficult to properly estimate the cost of a patent in the United States. So much of your estimate will depend on what technology is involved. Unfortunately, just answering this question with “it can vary” won’t satisfy anyone or provide much direction. Therefore, we’ll attempt to outline the process and provide as much clarity as possible.
You must first understand a simple fact: a patent’s very nature means you must have invented something completely unique when compared to what is known as “prior art”. It is extremely challenging to properly describe every characteristic that distinguishes your invention from everything else on the market, and sadly laws are getting more complicated in this matter each year. You’ll be dealing with dense legalese stemming from the United States Court of Appeals for the Federal Circuit, the US Patent and Trademark Office (USPTO), and even the Supreme Court. That said, technological advances have made the process of actually obtaining a patent easier than ever, especially compared to a decade ago. However, with that ease of access, making a compelling case to defend your patent will not come cheaply.
When it comes to applications, the fact is that you’ll get exactly what you’re willing to invest in it. First, you should examine exactly what sorts of things will be influential when anticipating the cost of preparing and filing a provisional patent with the USPTO. This will largely be determined by the type of invention itself, and just how complex that invention is. These two factors will determine everything from the patent search for prior art to the number of drawings you’ll need included in your application.
The trouble for most inventors is that, because they came up with the idea, they think that what they’ve invented is actually quite simple to explain. Because of this, defending a patent application should only take a few hours, and therefore the costs will be low. Unfortunately, even if the invention is relatively simple, the process of filing a patent is long and complex. Take a look at any recent patent (they are all public record) within the field of your new invention and you’ll see just how dense the text is. You’ll also see the sheer number of drawings that accompany the application, and notice how much of the text is so archaic, it would be impossible to understand by anyone without training in patent law
Most inventions do fall on the less complex side of things. These will range from the relatively simple to the minimally complex. However, if your invention is any sort of advanced electronic device, you are guaranteed to jump up the complexity curve regardless of your invention’s specific form and function. That goes even a step further when it comes to software. Any software invention is guaranteed to be considered highly complex because courts are continuing to increase the amount of technical jargon and detail demanded by the application. To have any hope of getting, let alone maintaining, any patent on software, your application will need to be overwhelmingly detailed.
Nonprovisional Patent Costs
To have any hope of actually having your patent approved, you’ll have to file what’s called a nonprovisional patent application. This type of application varies wildly in cost based on the complexity of the invention. However, there are a few known quantities. Any independent inventor or small business will at least have to pay a minimum government filing fee of $730. The fee is a minimum of $400 for anything classified as a micro entity. However, you should note that the fee will increase based on the number of claims contained within the application.
Another essentially mandatory cost for your patent application is professional drawings. Technically you can do the drawings yourself, but in reality every patent has a better shot when hiring a professional. For a complete set you’ll likely pay anywhere from $300 to $500.
Ultimately, the cost of your patent application will depend mostly on what you intend to do with that patent, and just exactly what market opportunities there are for your invention. If there are actually realistic opportunities in the market, you may want to increase your spending even if your invention is comparatively simple. Being able to protect your patent is critical, and the more you invest in the application, the better protected that patent will be. The decision is really all up to you. You could pay a cheap attorney to create a broad, simple application that won’t hold up to any significant scrutiny, or you can invest thousands and in return get yourself an ironclad defense against any and all issues of infringement. This is because patent strength is mostly determined by the number of claims in the application and the amount of detail in the technical disclosure. The more you can explain options, variations, alternatives, and different embodiments, the wider reach your patent has in protecting your invention. Naturally, adding claims and greater detail means more time spent by the patent attorney, meaning a bigger bill in the end.
If your company depends on its intellectual property to remain competitive, you have to make sure it remains protected. Without your IP, you’ll never be able to earn funding from investors. No investors means there’s no way your company can grow and expand.
When a company is looking to cut corners and shave cost off of their patent application, the first place they usually look is the patent search. It will always be a terrible idea that will come back to bite you in the end. It’s such a dangerous risk that many legal offices refuse to represent anyone who skps a patent search. The only way they’d even consider it is if you sign a waiver stating that you’ve been advised of the dangers of skipping the search and that you are choosing to go against the advice of your legal counsel.
This is so important to the patent application process that Micky Minhas, Chief Patent Counsel at Microsoft has stated that his company does “prior art searches on every one of our cases.” Even though they search on every application, they still find past art they weren’t expecting. Missing previous art will slow the patent process and leave your invention vulnerable; it’s a risk you cannot afford. Further, doing the patent search will give you an idea if there’s even room in the market for your invention at all.
That being said, it’s important to understand that there are no guarantees with a patent search. When conducting a search, the goal is to reach a threshold of 80% “level of confidence”. This is because it’s virtually impossible to get any higher confidence level without investing such a large amount of money it would essentially invalidate the patent process. Some prior art is literally impossible to find in a search because there are actually patents which are required to be kept secret by law. You cannot plan your application based on prior art you cannot see, therefore investing in trying to identify if this art exists is totally pointless for the purpose of your application. For this reason, you have to have a reasonable expectation of your patent search. You must be thorough, but understand the limitations of the process.
You may now feel like the search is less worthwhile, but even an 80% confidence makes a huge difference for your patent. Without any knowledge of prior art, you have no point of reference to describe and distinguish your invention.
You’ll want a professional patent searcher involved in the process, along with an attorney-written opinion. This will typically fall in a range between $1,000 and $3,000. Much of this will vary based on how much written analysis is necessary for your specific invention, essentially the level of complexity. Yes, the cost can be high, but having a competently-performed patent search accompanied by solid written analysis of a patent attorney will be the most useful investment you can make for your application.
There have been lots of numbers and “what ifs” thrown around, but we can break it down more specifically to give you a better understanding. The estimates below are purely hypothetical and will assume that the application is of a higher caliber, and that you have filed the application with the sole intent of securing a powerful, well-protected patent.
Computer-implemented process for facilitating specific Internet functionality
- Patent search with an attorney opinion = $2,500 to $3,000
- Provisional patent application fully prepared and filed = $6,000
- A filing fee paid to the USPTO for the provisional patent application = $130 (small entity)
- Nonprovisional patent application which is based off the provisional filing = $10,000 to $12,000
- Filing fee paid to the USPTO for the nonprovisional patent application = $800 to $1,250 (for a small entity)
- Professional illustrations purchased for nonprovisional patent application = $500
- The TOTAL COST of filing a nonprovisional patent application = $19,930.00 to $22,880 (if the provisional patent application process is skipped, then the cost would be $130 less)
In addition to the costs above, make sure you set aside between $5,000 and $7,500 for any issue fees and prosecution that come up.
We fully understand that these high costs may make the application process prohibitive for some inventors. However, it is better to understand the cost and possibly delay the process rather than get a cheap patent that won’t protect your invention. The choice is of course yours and yours alone, but the level of protection will be directly proportional to the money invested.
Cost to Patent an Idea?
For the typical invention and patent process, the cost of a patent looks something like this:
- File provisional patent application - USPTO fee $65 (for most inventors, assumes micro entity status)
- File non-provisional patent application - USPTO fees (filing fee, search fee, etc.) about $400
- Patent Issue fee - USPTO fee $450
- Maintenance fee (due 3.5 years after your patent is allowed) - USPTO fee $400
- Maintenance fee (due 7.5 years after your patent is allowed) - USPTO fee $900
- Maintenance fee (due 11.5 years after your patent is allowed) - USPTO fee $1,850
Note: you will not have to pay all these fees at the same time.
It may be useful to create a timeline so you can visualize the costs and when they’ll come up. Most of your costs will fall into three distinct categories: USPTO filing fees, drawing fees, and attorney fees. The largest of these will always be the attorney fees. The only way to potentially reduce that cost is to hire a patent attorney to teach you how you can create and file a patent application on your own. This plan could save you thousands of dollars and, if you learn it well, still yield a quality patent application in the end.
In the end, there’s no way to give a fair and accurate estimate of how much your patent will cost. However, with an understanding of the full process, you’ll be better equipped to do the research and ask the right questions that will give you an idea of what your final cost might be.
If you need help investigating a provisional patent filing fee, you can post your legal need (or post your job) 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, Stripe, and Twilio.