What Does a Software Patent Cost?

A software patent will cost anywhere from $6,000 to $12,000 and possibly upwards of $10,000 in patent lawyer legal fees. According to the American Intellectual Property Law Association, the median cost for a software patent is $10,000 and include the filing fees for the patent application.

For a provisional software patent, you might pay between $1,500 and $2,000. A provisional patent application is only the first step in receiving a software patent.

An UpCounsel patent attorney, who has an average of 14 years of experience and has been pre-screened as the top 5% of lawyers, charges between $6,000 and $9,000 for a software patent application. Our platform allows you to save upwards of 60% on legal fees in comparison to large law firms.

What Is a Software Patent?

A software patent is put into place to protect your idea from inappropriate use by others. It means your competition cannot use your idea without your permission.

If they do use your idea without permission, there are consequences. A software patent could also position your company for better financial performance.

What's Included in a Software Patent?

When any new material or idea is created and fixed in a physical format, it's granted a copyright.

A copyright can be formalized with an application to the United States Copyright Office, but it's not necessary. A formal copyright only makes litigation after misuse and claiming damages easier.

Application Details

It's important to include as much information about your software in your patent application is possible. The courts expect to see a lot of detail and explanation about your software.

To receive and maintain a software patent, you must prove your idea is unique. Describe every detail, including the way it works and how it was made.

International Difference

There is no global patent, as patent rules are different around the world. To apply within each jurisdiction, you must follow that area's rules.

Patents Are Money

Patents have become a commodity by themselves. There are companies who purchase software patents to turn around and sell them to make money. Some companies hold the patents to charge other companies royalties.

Some companies deal only in intellectual property. There are many, many software patents out there. This means it's all the more important to spend time searching and planning. If your patent application doesn't have a strong foundation and doesn't show uniqueness, you'll waste your time and money on an application.

What's the Importance of a Software Patent?

A software patent is important if you want to protect your idea and keep the market open for your product. A provisional patent is the first step toward obtaining a software patent.

A provisional patent on UpCounsel costs between $1,500 and $2,000.

Software Patent Protection

A software patent can be used defensively and offensively. The patent owner must also act as the patent enforcer. Sadly, a patent will not protect you from lawsuits. Patents don't give you the right to use or make your invention, just to prevent others from doing so.

Why Shouldn't I Apply for a Software Patent?

Applying for a patent is expensive and time-consuming, especially for software. Patents for software are some of the most costly to apply for and receive. Many technology entrepreneurs don't patent their software to save money and time.

A 2008 Berkeley Patent Survey found that two-thirds of approximately 700 surveyed software entrepreneurs didn't have patents. They rated software patents as the least important mechanism out of seven options for getting ahead of competitors.

Application requirements for obtaining a software patent change often. These changing regulations make it difficult to know what is necessary to include in a written description of the product on the application.

The law as to what is considered unique and patentable continues to get more complicated.

One concern when applying for patents is that patent offices do not and cannot keep up with technology. This can make patent officers unqualified to judge patent eligibility of software. Changes in technology come rapidly in this technological age and it can be impossible for patent officers to keep up with the changes. Software innovations are sometimes not obvious to someone who's untrained.

This is important to note as inventions in technology as innovations may look trivial and won't be obvious to someone who doesn't fully understand.

Patents are also issued for 20 years. This is too long of a time period for software innovation.

The Total Cost of a Software Patent

There are many small factors that play into the cost of obtaining a software patent, including:

  • Application filing fees — These fees are nonrefundable. If you are denied a patent, you will lose this money. After you file your software patent, the cost is not quite over. It's important to budget another $5,000 to $7,000 for representation and prosecution.
    • Provisional patent application: $65
    • Nonprovisional patent application: approximately $400
  • Patent lawyer fees — A good patent lawyer should cost $200-$400 an hour. There are lawyers who charge less.
  • Time — A patent attorney can really speed up the patent application process. When working with a patent attorney, the application can be done within days or weeks. If filing your software patent application yourself, there will be a time cost. Patent applications are hard to understand. There is a lot of legal jargon you will have to learn, so you should consider your time when factoring your total cost.
  • Risk — You can save money by applying for a software patent on your own. This increases the risk of denial. The system is extremely complex with many hidden pitfalls. A software patent application denial can mean your application fees are lost and money is wasted.
  • Maintenance fees — After you are granted a patent, there are maintenance fees. This is not a cost that's due until after the patent is granted.
    • 5 years: $400 fee
    • 5 years: $900 fee
    • 5 years: $1,850 fee

On average, a software patent application could cost $10,000. On UpCounsel, a software patent application costs between $6,000 and $9,000. The UpCounsel cost includes preparation of the application, filing of the application, and representation after application.

The cost of filing fees range for different types of applicants and applications. For small entities, which is how most independent inventors are categorized, the filing fee is a minimum of $730. For micro-entities, the filing fees are a minimum of $400.

Filing fees can and do go even higher. The cost of the filing fees depends on the number of claims the application contains.

Professional drawings can also be costly. A complete set of drawings range from $300 to $500. This cost is in addition to the filing fees.

Ways to Save

If you're looking to save money, you can do the software patent filing yourself. If this is the case, the application may cost you as little as $2,500 to $3,000. Some ideas to reduce cost when filing for a software patent:

  1. Research attorneys. Choose an attorney who will negotiate their fee. Find an attorney that is affordable to you.
  2. Get inspiration. When searching patents, look at the format used. Takes notes on how successful patents look and how information is laid out. This can be replicated on your own application.
  3. Do your own patent search. You can save money by doing your own search for similar patents. The search makes sure your idea is unique.
  4. Use your time wisely. After filing a provisional patent application (just $65), use the year hiatus to test the software, complete patent searches, test-market the software, and find investors.
  5. Do the legwork. Prepare as much information and draft as much of the patent application as you can. This will save on attorney fees.
  6. Get an editor. After drafting a patent application, have it reviewed by a patent attorney. By completing the first draft yourself, you'll save on attorney fees. A well-done first draft could cut your attorney fees in half.
  7. Get some lessons. Have a patent attorney teach you how to write and file your own patent application. Instead of the attorney writing and submitting, you can do it yourself.
  8. Limit yourself. File your patent application only in the countries where it's relevant. If you don't plan to sell software there, there's no need for a patent.
  9. Do everything yourself. The cheapest way to file a patent application is to do it all yourself. With just the application fees, the cost could get as low as $900.

When trying to save money on a software patent application, don't forget that fees are nonrefundable. If your patent is denied, that money is gone. A knowledgeable patent attorney lowers the risk that your software patent application will be denied. A strong patent application takes knowledge, attention to detail, and time.

Common Mistakes

If your product is a miracle invention that will save each person who purchases it time and money, it's likely to be very successful. On the other hand, if there's a simple workaround, you might be wasting your money on a software patent.

Publication and release of your product provides limited protection. It doesn't offer as much protection as a software patent. If you're applying for a patent within a crowded field of invention, know it's important to point out what's different on your application. The clearer you can make the differences, the more likely you are to be approved.

In the moment of excitement and invention, a patent search is likely far from an inventor's mind. A patent search should always be the first step when considering a software patent application. Not performing a patent search is one of the easiest and worst mistakes new inventors make.

When patenting software, there are a few other notable concerns:

  • A software patent may protect abstract ideas. The legal boundaries of an abstract idea are not well defined. The definition might also change depending on the region where the patent was issued. These abstract ideas may have commercial value.
  • Patenting software may lead to reduced innovation. There are dependencies and interdependencies that are a requirement of software development.
  • There is no global standardization as to what software is patent eligible and what is not.
  • Understanding software innovation has legal and technical complications.

Patent Search Benefits

If you submit a software patent application just to find a product identical to yours already exists, you've wasted your money. Money spent on patent applications and lawyer fees is nonrefundable. A patent search before application is necessary to save yourself wasted time and money.

One reason a patent search is complicated is what's called a crowded field of invention. This term means there are a lot of patents and patent applications in a small niche of invention. If this is the case, you will need to make fine-line distinctions between previously-patented inventions and your own.

These distinctions will increase the work of the application and could raise the cost of your drawings. The drawings will need to include a lot more detail for the differences to be distinct enough to receive an approval for a patent. The more distinctly you describe and draw your invention, the more likely you are to receive a patent.

No Guarantee

A patent search will never be 100 percent. When completing a patent search, the goal is to be 80 percent certain no similar patents exist. If similar products exist, you can stop your application process after the search and save thousands of dollars.

Improve Your Application

A patent search of similar products and ideas can also improve your application. Looking at other patents and drawings can help refine an idea. Once the idea is refined, your application will be more detailed and more likely to be accepted.

Hired Help

It is possible to hire a professional patent searcher to help you search other patents. A professional searcher can be of benefit because he has access to pending applications and prior art.

Once the searcher is finished, he will give the results to your patent attorney. The patent attorney will review and write an opinion.

When looking for a patent attorney, the most important characteristic should be their experience. Ask questions to see if the attorney has experience, not only in patent applications, also in putting together patent applications in your field of invention.

If you patent attorney cannot understand your invention, they cannot describe it. Without a clear and highly specific description of your invention, you won't receive an approval for a patent. This is especially true for inventions in the software industry.

You, as the inventor, should play a large role in properly describing and approving the description of your invention. It's important to also seek an attorney who is happy for the help of the inventor.

This process typically costs $1,000 to $3,000. The cost is determined by the amount of analysis, the complexity of the invention, and the amount of similar inventions discovered.

FAQs

  • Do I have to have a patent?

A patent can be used to protect your invention or idea. That being said, it is not required. You can release your idea publicly without a patent. A patent protects your ideas from being used by others, which can increase financial success.

  • If I only have a little bit of money, where should I spend it?

Invest in a software patent search and patent attorney to review the results. This typically costs between $1,000 and $3,000. This money spent could save you a lot in the future. A patent searcher reviews all pending and accepted patents to make sure your invention is unique and therefore able to receive a patent.

  • If I apply for a patent and am denied, are the fees refundable?

No. The fees paid when filing a patent application are not refundable. The fees go to pay for the examination of your patent application.

If you need help with software patents, you can post your question or concern 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.