The United States Patent and Trademark Office current fee schedule went into effect on January 14, 2017, and was last revised on May 1, 2017. Fees change from time to time, so please do check the fee schedule before you file to make sure you are providing the Office with the proper fee.
The first thing to know about USPTO fees is that for any particular line item there are three possible fees. This reflects the reality that there are separate and distinct fees due depending upon what classification the applicant falls into. The three different classifications are (1) Large entity; (2) small entity; or (3) micro entity. Large entities pay the full fee, small entities pay 50% of the full fee for almost everything, and micro entities pay 25% of the full fee for almost everything. There are a few items for which there is no small entity or micro entity discount. For example, fees for instituting a post-grant challenge before the Patent Trial and Appeal Board (PTAB) are all flat fees that do not carry any kind of discount.
The micro entity discount on patent fees became available on March 19, 2013. To qualify as a micro entity, an applicant must meet all of the following criteria: (1) Qualify as a USPTO-defined small entity; (2) not be named on more than four previously filed applications; (3) not have a gross income more than three times the median household income in the previous year from when the fees are paid; and (4) not be under an obligation to assign, grant, or convey a license or other ownership interest to another entity that does not meet the same income requirements as the inventor.
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The maximum gross income for purposes of paying the micro entity discount rate is currently $155,817. If you qualify for micro entity status you will file a Certification of Micro Entity Status. Unfortunately, serial independent inventors typically do not qualify as micro entities because of the requirement that they be named on no more than four previously filed patent applications. However, inventors are not considered to have been previously named on a patent application if he or she has assigned, or is obligated to assign, ownership rights as a result of employment.
The small entity discount applies to any “small business concern” as defined under section 3 of the Small Business Act, and to any independent inventor or nonprofit organization as defined in regulations issued by the Director. A small business concern means any business concern that has no more than 500 employees. Universities qualify as small entities, regardless of size. But for business or nonprofit organizations, including universities, to enjoy the small entity discount they cannot have assigned, granted, conveyed, licensed, or be under an obligation to assign, grant, convey, or license, any rights in the invention to any person or entity that would not qualify for small entity status as a person, small business concern, or nonprofit organization.
The basic filing fee for a nonprovisional patent application filed at the Patent Office for an individual inventor that does not quality as a micro entity, or a small company that qualifies for small entity status is now $70.00, assuming the application is filed electronically. For those who are familiar with the fee structure prior to December 8, 2004, you will remember that the filing fee for small entities was formerly $395.00. It would, however, be a mistake to believe that the Patent Office has decreased its fees. The Patent Office has always like to charge a la carte fees, and in recent years they have taken that tendency to new heights. In addition to the basic filing fee the Patent Office also a Search Fee ($300 for small entities filing a nonprovisional patent application) and an Examination Fee ($360 for small entities filing a nonprovisional patent application). Therefore, the total fee due to the Patent Office for a small entity to successfully launch a nonprovisional utility patent application is $730.00. It is also important to realize that this initial fee covers only up to 3 independent claims and up to a total of 20 claims regardless of whether they are in independent or dependent format. If you have more than 3 independent claims, and/or you have more than 20 total claims it costs more. Additional independent claims for small entities will cost $210.00 and each claim in excess of 20 total claims will cost $40.00.
In addition to the various filling fees there is also an issue fee due before any patent will be granted by the Patent Office. The current issue fee for a small entity that is seeking a utility patent is $480.00. So even without any attorney fees the absolute lowest amount a small entity could pay for a single patent is $1,210.00. In reality what happens is that during prosecution many times the examiner will allow some claims but not all claims. If that happens you may decide to let the allowed claims issue, at which point the issue fee would become due. Then you may decide to continue fighting over the rejected claims in hopes of getting the examiner to ultimately agree to issue additional claims. That would require another patent application, which would lead to additional filing and issue fees. You can, of course, always decide to drop the rejected claims and incur no additional fees with respect to them, or you could also decide to appeal, which means additional attorney time preparing the appeal and payment of additional Patent Office fees of $400.00 for small entities filing a Notice of Appeal and an appeal brief. If you want an oral hearing that would add an additional $650 for small entities.
Of course, there is also the possibility that during any examination you may need more time to respond than the Office gives you for free, which means you would need to pay for extensions of time to respond. The USPTO sells extensions in one-month increments. You always get at least two-months to respond to anything at the USPTO, but in almost all cases you cannot respond beyond six months. So if you have a two-month period to respond and for whatever reason you do not respond until right before the six month statutory deadline that would require a four-month extension, which is quite expensive. Extension costs for small entities are as follows:
- 1 month = $100.00
- 2 months = $300.00
- 3 months = $700.00
- 4 months = $1,100.00
- 5 months = $1,500.00
The lesson here is that fees can add up quickly. It is true, however, that once you file an application it will likely be many months (or perhaps years) before the Patent Office will get back to you so you can usually stagger these additional fees.
Additional things to know and remember regarding the cost of obtaining a patent include (these assume you are a small entity):
(1) Maintenance fees are required to keep the exclusivity of the patent in tact for the full patent term. Maintenance fees are due 3.5, 7.5 and 11.5 years after issuance. Currently, the cost of these maintenance fees for a small entity is $800.00, $1,800, and $3,700, respectively.
(2) If it becomes necessary or desirable to obtain additional consideration from a patent examiner, perhaps because all claims stand finally rejected, you can file a request for continued examination (RCE), which will cost $600.00 for the first RCE and $850.00 for the second and subsequent RCE request(s). While an RCE is not filed in every application, it is wise to budget for at least one.
(3) Each patent that issues will also have separate filing, issue and maintenance fees, as discussed in the previous paragraphs.
(4) Filing a provisional patent application is an excellent way to start the patent process for individual inventors, entrepreneurs and small businesses, but the provisional application will never mature into an issued patent. To obtain exclusive rights you must subsequently file a non-provisional application within 12 months of the filing date of the provisional. It is the nonprovisional patent application that will lead to exclusive rights. Provisional applications are tremendously useful, but please do understand the limitations.
Because these fees change with some regularity this article is intended to be informational, not authoritative. You should always check the current USPTO fee schedule before paying a fee to the Patent Office.
Please note: If for some reason the USPTO links become inactive you can always find the current USPTO fee schedule by searching “USPTO patent fees” in the search engine you typically use.