9 FACTORS AFFECTING THE COST OF PATENT PROTECTION

If you’re running a tech company, you’ll inevitably find yourself asking: How much does it cost to file a patent application?

A quick Google search will leave you with the vague answer that it depends. Certainly, costs will vary on a case-by-case basis. But when you have ballpark figures for how different factors might change the total cost of your patent application, you can better prepare yourself financially.

In general, the biggest variable affecting total cost is legal fees. Those fees are generally tied to the amount of time that your legal team spends on the project. Some law firms (including Henry Patent Law Firm) offer “flat fees” or other types of fee arrangements — but note that “flat fees” are usually based on an estimate of how much time the legal team will spend on the project.

With that in mind, this post discusses nine factors that, in our experience, seem to have the biggest impact on the cost of patent protection; most of them are tied to your legal team’s level of involvement.

1. THE TYPE OF PATENT APPLICATION BEING FILED

The type of patent application you’re filing can have a major impact on your total cost.

For one, provisional patent applications are initially cheaper to file than non-provisional applications:

• Provisional patent applications
  • Involve lower filing fees and fewer formalities
  • Can be strategically used to secure early filing dates
  • If filed, your total cost for the first year can easily be less than $5,000
• Non-provisional patent application
  • Generally costs between $13,000-$19,000 to prepare and file — and that cost doesn’t include any follow-up actions or maintenance fees

But keep in mind that provisional applications are only lower-cost stopgaps — if you don’t budget to file a non-provisional application within 12 months of filing the provisional application, you won’t be issued a patent.

For another, design patents may be cheaper to file for than utility patents. 

• Design patents
  • Protect the way your invention looks
  • Applications typically contain only drawings with no written description
  • May be filed for less than $3,000
• Utility patents
  • Protect the way your invention functions
  • Applications require both drawings and written descriptions
  • After a utility patent is issued, you’ll still need to pay maintenance fees if you want to keep the patent in force for the full 20 years
  • Total cost may end up between $20,000-$50,000

2. THE GEOGRAPHIC SCOPE OF PROTECTION YOU’RE SEEKING

If your business could potentially be profitable outside of the United States, you may want to seek foreign patent protection by filing an international (“PCT”) application.

Pursuing international patent protection can become very expensive, not least because you’ll need to file separate applications for every country you’re seeking protection in.

We recommend budgeting $30,000-$50,000 per country over the life of the patent; for a more detailed cost breakdown for popular foreign jurisdictions, please check out our free infographic on patent filing costs.

3. YOUR INVENTION’S TECHNICAL SCOPE AND COMPLEXITY

The complexity of your invention affects the extent of written description and drawings that need to be provided in your application. In other words, applications for more complex inventions are more expensive because they require more time to prepare.

Also, if you have several related inventions, one cost-effective way to cover them all is to combine them in a single patent application. While this is usually much less expensive than drafting several separate patent applications, it isn’t always appropriate — consider consulting a patent professional to determine if this strategy is right for you.

4. THE QUALITY OF YOUR INVENTORS’ WRITTEN DISCLOSURE MATERIALS

Quite simply, the more effort the inventors put in to prepare clear and comprehensive invention disclosure materials beforehand, the less time your attorneys will need to spend on completing your application — which will reduce the total legal fees incurred.

For one, the inventors could prepare a high-quality write-up with figures and detailed examples. Otherwise, your attorney will have to spend extra time holding extensive conversations with inventors in order to collect relevant information.

For another, you should immediately inform your attorneys if the invention’s technical scope changes or evolves at any time. Otherwise, the attorney may need to spend additional time on multiple drafts and rounds of revision.

5. THE INVENTION’S OWNERSHIP STRUCTURE

If all inventors have agreed to assign the invention to a single company (usually their employer), the assignment process is very simple and straightforward.

But if the invention has multiple owners, or if the inventors are not all on the same page regarding ownership, then your attorney may have to handle a more complicated assignment process, which may increase the total costs incurred.

6. THE SIZE OF YOUR ORGANIZATION

Essentially, bigger organizations are subject to higher USPTO fees. But many startups may qualify as “small entities” and can consequently enjoy a 50 percent discount on most USPTO fees. The final amount you’ll need to pay will depend on the services you’re engaging; please refer to USPTO’s website for the full fee schedule.

You may qualify as a small entity if and only if:

• You are a person; or
• Your organization qualifies as a small business concern; or
• Your organization is a non-profit;

and you’re not obliged to license or assign your invention to any party that’s not also a small entity.

7. CONDUCTING A PATENT SEARCH

Inventors can conduct their own patent searches using free and public resources like the USPTO’s patent search and database system. We’ve found that many inventors are typically already aware of the existing prior art — though it’s highly unlikely that you will be able to discover all existing prior art, given that prior art includes secret patent applications that have not yet been published.

Still, you can engage a patent professional to help you conduct a patent search and provide an opinion of patentability. The cost of a patent search will depend on its scope, your industry, and your invention’s complexity. But you can typically expect to pay between $2,000-$3,000.

8. RESPONDING TO USPTO OFFICE ACTIONS

It’s rare for an application to be approved in the initial round of examination. Moreover, the number of office actions you can expect to receive is very unpredictable because you might just draw a difficult examiner (for any examiners who might be reading this, of course we’re not talking about you).

Each time you respond to a USPTO office action, the costs may run anywhere between $2,000-$7,000.

Still, these costs typically occur at least two years into the process, so you won’t be facing them upfront. If you end up deciding that you don’t want to incur the expense of responding to office actions, you can always abandon the patent application when the time comes.

9. PAYING MAINTENANCE FEES

As with USPTO office actions, you aren’t committing to these costs upfront. Each maintenance fee is due 3.5, 7.5, and then 11.5 years after your patent is first issued. Paying all three maintenance fees will cost you between $14,000-$15,000 in total.

So likewise, if at any point you decide you don’t want to pay maintenance fees, you can always abandon the patent later on.

SO, HOW MUCH WILL OUR PATENT APPLICATION REALLY COST?

We understand that our clients and other tech business owners need clear, reliable estimates for the cost of their patent applications because it helps them to budget for a lengthy, costly process.

But even with ballpark figures in place, these costs are determined by so many different factors that it’s best to consult a patent professional for an estimate that accurately represents your needs.

Still looking for that ballpark? Our free infographic, “The Cost of the Patent Process,” shares with you the typical cost estimates for each step of the patent process.