Estimating US patent costs is a difficult matter because so much depends on the technology involved.  Nevertheless, I am still routinely asked for ballpark figures and estimates, so what follows should give some guidance when budgeting through the filing of a patent application at the United States Patent and Trademark Office. It will also be helpful to review Patent Attorney Fees Explained and US Patent Office Fees.

First, it is essential to understand that the very nature of patenting an invention means that you have to have come up with something unique compared with the prior art.  There are challenges inherent in the description of what makes an invention unique, and the law is only getting more complicated.  Thanks to the United States Supreme Court, the United States Court of Appeals for the Federal Circuit and ever more regulations from the United States Patent and Trademark Office it has become more difficult over the years to create the type of written description and claim sets required.  You can still get a patent, and in fact obtaining a patent is getting easier than it was several years ago, but gone are the days that a worthwhile patent can be obtained for cheap.  With patent applications you will always get what you pay for.

It might be useful to start with a discussion of those types of things that will influence the anticipated cost of preparing and filing a patent application with the United States Patent and Trademark Office.  Obviously, among the most important considerations is the invention.  The type of invention and the degree of complexity is probably the single most important consideration that needs to be taken into account.

Inventors always want to believe what they have is relatively simple and can be easily described and that the entire project should take only a few hours.  The first clue that you are wishing for something that isn’t true should be that you are wishing!  In my experience many, if not most or even nearly all, inventors know deep down that the patent application process is a complex process.  If they have reviewed recent patents relative to the area of their invention they know that there is a lot of text, a number of drawings and the entire document is largely incomprehensible by anyone not thoroughly marinated in the intricacies of patent law.

Indeed, the majority of inventions for most independent inventors range are typically somewhere in the range from relatively simple to minimally complex (see table below).  Having said that, if you are dealing with software or a sophisticated electronic device your invention is almost certainly at least moderately complex and more likely relatively complex (see table below).

If you are going to ultimately receive a patent you are going to need to file a nonprovisional patent application. Without knowing a good deal about an invention it is very difficult, if not completely impossible, to give reliable estimates as to likely costs associated with filing a nonprovisional patent application. Nevertheless, below is some rough guidance regarding what you can expect to pay in attorneys fees through filing of a nonprovisional patent application.  Obviously, I do not speak for the patent bar as a whole, so these are based on my own experience and work with inventor clients and businesses.  The examples are intended to be illustrative of the level of complexity, not to suggest that they would be patentable. Please be aware that the government filing fees of about $500 are the minimum, and filing fees can and do go higher depending upon the number of claims the application contains.  Professional drawings, which really need to be thought of as required, will typically add at least another $200 too $400 for a complete set drawings. It is also worth noting that virtually no invention is “extremely simple.”

These are just ballpark figures, and attorneys fees through filing can certainly go well above $15,000 depending on complexity of invention and/or the need for and ability to acquire broad patent protection.

How much you will spend on a patent application also depends upon what it is that you want to do with the patent and whether there are realistic market opportunities. In the event there are realistic market opportunities you may spend more even on something that is simple to make sure that you have covered the invention enough to have a strong resulting patent. By way of example, you could probably find an attorney to write a patent for a business method or computer software for quite cheap, but a cheap computer related patent would not be nearly as strong as a patent application costing $20,000 or more. The devil is always in the details. Getting a stronger patent requires more claims and more attention to providing an adequate disclosure and describing as many alternatives, options, variations and different embodiements as possible. This, of course, requires greater attorney time and higher filing fees, which in turn requires more time spent working with the patent examiner to get the patent issued.

For some companies all they have is intellectual property, so they should budget more per application because without an exceptionally strong foundation there will be no realistic possibility to obtain broad patent protection and without strong patent protection there is not likely to be funding available.  That means you never get off the ground.  So in the biotechnology sector and in the software sector, where tangible assets are minimal, it is not at all surprising to hear of innovative start-up companies paying far 1.5 or 2 times the ballpark figures listed above.

In order to keep costs down inventors and small businesses will frequently look for ways to cut corners.  Sometimes the first corner that is sought to be cut is the foregoing of a patent search.  This is always a bad idea and generally turns out to be a big mistake.  In fact, I will only represent people who want to skip the patent search phase if they sign an agreement that sets out the dangers of choosing to forgo a patent search and that they have been specifically advised against proceeding without a patent search.  What does that tell you about the dangers that lurk?  If an attorney makes you sign such an agreement it is because they know that dangers lie ahead, and for those that do not do a patent search the dangers are substantial.  Worse, when the prior art is later located and the description is deficient because there really is nothing new described the client wants to blame the patent attorney.  This is a mess and I just don’t play in that sandbox.

A patent search is absolutely critical because it will give us an idea about whether it even makes sense to pursue a patent in the first place.  Patent searches do not come with guarantees.  The goal of a patent search is to reach the 80% level of confidence threshold.  To reach higher would take many thousands of dollars, and to reach near certainty would require millions of dollars, so the search that is undertaken is reasonable given the value of the invention.  It is also reasonable given that the prior art represented in patent applications filed for the first time within the last 18 months are simply not findable because they are required by law to be kept secret.  So a “no stone unturned” search is not possible and not economically wise.

Having said this, a professional searcher working with a patent attorney in combination will always be able to find prior art patent and pending applications that you did not know about.  Without knowing what is out there that can be found time is wasted focusing description and claims on aspects of the invention that have little or no realistic opportunity to be protected.  The searches we provide range from $1,000 to $2,400, and that is the best money that an inventor can spend in the process.  The search directs the entirety of the remainder of the patent project, or it could show there is no reasonable opportunity to obtain a suitably broad patent claim so the project should be abandoned, saving the inventor many, many thousands of dollars.

Another thing inventors can do to reduce costs is to first start by filing a provisional patent application.  A provisional patent application needs to disclose the invention completely as would a nonprovisional patent application, but the exact formalities are greatly reduced making it easier to prepare, meaning it costs less.  We can attach documents to support the originally drafted provisional patent application, and we focus on getting as much as possible into the document.  In my experience most inventors who pursue the provisional do so because they have made an interesting advance and want to protect what they can now while they continue to refine and work on the invention.  Done in that way a provisional patent application makes all the sense in the world because it gives you protection with respect to what you have presently and lets you continue to work to improve the invention over 12 months before you need to file a nonprovisional patent application.

The cost for attorney time alone for a provisional patent application is typically at least $1,500. The filing fee is just over $100 and drawings typically cost $100 to $125 per page, so a high quality provisional patent application for can typically be prepared and filed for under $1,800.  As with nonprovisional patent applications, the technology involved and the complexity of the invention do greatly affect the quoted price for a provisional patent application. For example, for computer related inventions and software the cost to prepare and file a provisional patent application is typically $3,000 to $3,500 plus the filing fee and drawing costs.  Of course, these are just ballpark estimates.

The one thing that we have not yet discussed, which does play a role in any quote you will receive for either a provisional patent application or a nonprovisional patent application, is how many patents and published applications are found that closely relate to your invention.  When there are a lot of patents and published applications found that is said to represent a “crowded field of invention.”  As such, it will be necessary to make find line distinctions.  The more prior art innovations that need to be considered the more the work, and hence the higher the cost.

To review, perhaps a couple examples might be helpful.

Example 1: Computer implemented method for facilitating certain functionality via the Internet

• Patent search with detailed patentability assessment = $2,400
• Provisional patent application prepared and filed = $3,000
• Filing fee to the USPTO = $110
• Nonprovisional patent application based off provisional filing = $11,000
• Filing fee to the USPTO for nonprovisional patent application = $1,200
• Professional illustrations for nonprovisional patent application = $400
• TOTAL COST through filing nonprovisional patent application = $18,110.00 (if provisional patent application is skipped the cost would be $110 less)

Example 2: Consumer electronics product

• Patent search with detailed patentability assessment = $2,000
• Provisional patent application prepared and filed = $2,000
• Filing fee to the USPTO = $110
• Nonprovisional patent application based off provisional filing = $7,500
• Filing fee to the USPTO for nonprovisional patent application = $800
• Professional illustrations for nonprovisional patent application = $400
• TOTAL COST through filing nonprovisional patent application = $12,810 (if provisional patent application is skipped the cost would be $110 less)

Example 3: Mechanical tool

• Patent search with detailed patentability assessment = $1,600
• Provisional patent application prepared and filed = $1,500
• Filing fee to the USPTO = $110
• Nonprovisional patent application based off provisional filing = $6,500
• Filing fee to the USPTO for nonprovisional patent application = $600
• Professional illustrations for nonprovisional patent application = $400
• TOTAL COST through filing nonprovisional patent application = $10,710 (if provisional patent application is skipped the cost would be $110 less)

The costs can add up quickly no doubt, and there will be post-filing costs once the Patent Examiner starts to examine the application filed, but those will be the subject of a future article.

Given the high costs associated with obtaining a patent some inventors either need to give up on the project, do it themselves or seek deep-discount providers, many of whom are not patent attorneys or patent agents.  You need to always remember that you get what you pay for, which is true in every aspect of life, so be careful with deep-discount providers.  Before going with such a deep-discount provider be sure and read Patent Application Costs: You Get What You Pay For.

For those who need to pursue protection on their own I have developed a self help system – The Invent + Patent System™ – for preparing and filing a provisional patent application. I have used this system with my own clients to collect information from them to help facilitate the application process. I have used this process to teach law students how to draft patent applications, and thousands of inventors have used this system to prepare and file their own provisional patent applications. While it is always better to hire a professional if you can afford it, I feel comfortable saying that my system is better than anything else out there, including any do-it-yourself books.