Effective October 2, 2008, the United States Patent Office fees will once again be changed, which is a yearly or bi-yearly event. The filing fee to the Patent Office for an individual inventor or a small company that qualifies for small entity status (i.e., companies with fewer than 500 employees) is now $165.00. 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 in such a significant way. The Patent Office has always like to charge a la carte fees, and now they have taken that tendency to new heights. In addition to the basic filing fee the patent fee legislation enacted on December 8, 2004, requires payment of a Search Fee ($270 for small entities) and an Examination Fee ($110 for small entities). Therefore, the total fee due to the Patent Office for a small entity to successfully launch a non-provisional utility patent application is $540.00. It is also important to realize that this initial fee covers 3 independent claims and 17 dependent claims. If you have more claims it costs more.
In addition to the various filling fees there will also be an issue fee due before any patent will be granted by the Patent Office. The current issue fee for a small entity is $755.00. So even without any attorney fees the absolute lowest you could pay for a single patent is $1,295.00. 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 some of them through the office. That would require another patent application, which would lead to additional filing 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 $540.00 (for an appeal without an oral hearing) or $1,080.00 (for an appeal if you want to have an oral hearing). 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.
Another cost associated with filing and/or issuance is the preparation of formal drawings. You will either need to be able to create patent drawings that are acceptable to the Patent Office or hire someone who can. Informal drawings are allowed to start, but formal drawings must be made before the patent can issue. Filing formal patent drawings initially, however, does create a broader initial disclosure, which can be most helpful. If you need to obtain professional patent drawings for something relatively simple may only cost in the range of $100 to $125 per drawing sheet, with each drawing sheet typically containing several figures per sheet. Given the complexity of the drawing rules and the comparatively small charge for professional drawings, it is usually better to hire someone who specializes in patent drawings.
Additional things to know and remember regarding the cost of obtaining a patent include (these assume you are a small entity, which means an individual or business with 500 or fewer employees):
- (1) Currently the initial fees for a non-provisional application are approximately $540.00 (there are actually 3 different fees which add up to this total, all of which are due at the time of filing. This fee covers the cost of 20 claims, but typically we file an application with about 10 claims so that claims can be added later during prosecution without the need to pay additional claims fees.
(2) Currently it costs approximately $755.00 to get a patent issued. Which means that once the Patent Examiner tells you that you have allowable material you must pay $755 to the Patent Office. If you do not make this payment no patent will issue.
(3) 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 an individual inventor or small entity approximately $490.00, $1,240.00 and $2,055.00, respectively.
(4) During patent prosecution it is common to need to pay the Patent Office additional fees. As a general rule of law you have 6 months to respond to virtually anything the examiner sends. The examiner will ALWAYS shorten this period to between 1 month to 3 months. If you want the full 6 months to respond no problem, but there is an additional fee. When you work with the Patent Office you quickly realize just how capitalist the Office really is. You can do and fix just about anything, but there will be a fee. Currently, extensions of time, for an individual inventor or small entity, cost approximately $65.00 for a 1 month extension, $245.00 for a 2 month extension, $555.00 for a 3 month extension, $865.00 for a 4 month extension, and $1,175.00 for a 5 month extension.
(5) If it becomes necessary or desirable to file a continuation (to keep the application alive to continue to fight for broad claims) there is another fee of between $405.00 and $540.00. If you want to make amendments after a final rejection that will also be another $405.00. Amendments after final are extremely common. This is true because one of the reasons you can file an amendment after final rejection is to accept an examiner suggestion. Examiners will frequently tell you in a final rejection that they would allow something if you made a specific change. Most will want to make the change, obtain a patent, and then consider filing a continuation to continue to fight for broader claims. What this means is that, at the very least, the additional $405.00 for filing amendments after final rejection should be considered to be a likely necessary expense.
(6) Each patent that issues will also have their own separate filing, issue and maintenance fees, as discussed in the previous paragraphs.
(7) 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 not mature into a 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 non-provisional that will lead to exclusive rights. Provisional applications are tremendously useful, but please do understand the limitations.
Because these fees change with some regularity they should be considere “approximate.” You might anticipate that they always go up, but that is not true. Sometimes they go down by a little or up by a little, but this will give you a good ballpark estimate and are, in fact, what the fees will be starting October 2, 2008.