It shouldn't surprise anyone to hear that it is not inexpensive to get a patent. A general understanding of the work necessary to get a patent will help applicants appreciate the effort that goes into the cost while also allowing applicants to take steps to minimize the cost. Costs will generally be incurred at three distinct times in the life of a patent: during 1) preparation and filing, 2) prosecution, and 3) post allowance.
1) Preparation and filing
The preparation and filing stage is probably the most labor intensive and therefore the most expensive. The amount of work will vary depending on the complexity of the invention. Generally, the greater the complexity of the invention, the greater the amount of work that has to go into drafting the patent application. I typically budget between 30 to 40 hours to draft a utility patent application. At an average of $300 per hour** that comes to $9,000 to $12,000 not including the filing fees. The cost of a provisional patent application varies considerably depending on how much work that applicants require. Filing an invention disclosure prepared by the client after brief review by the attorney for obvious faults as the provisional application should cost no more than $1000. You may opt for a prior art search before you file any application, which can add between $500 and $1,000 to the total cost of the patent. There is an increasing trend for flat fee services, but the cost shouldn't differ significantly. At this time, the filing fee for a provisional is $110 and for the utility begins at $545 for a small entity. A schedule of the Patent Office fees can be found online here.
One way to lower the cost at this stage is for the applicant to perform his or her own preliminary prior art search. If the applicant identifies relevant art that would stand in the way of getting a patent, the applicant may decide to abandon the venture before any additional effort is expended.
Another significant way to reduce the cost is to reduce the amount of time necessary for the patent attorney to draft the application. This can be accomplished by providing the attorney with a full disclosure that clearly identifies the invention so that the attorney can limit the need to use outside references to draft the patent application. For instance, one of the most time consuming patent applications that I drafted started from an invention disclosure that was no more than a broad concept written on a napkin. In that instance, I spent a considerable amount of time researching the subject matter before I could even begin drafting the patent application. On the other end of the spectrum, a client that provides an attorney with a large disclosure without a clear indication of the subject matter that the client considers the invention will incur fees for the attorney to sift through potentially irrelevant information to get to the invention. Companies that file patent applications regularly use invention disclosure forms that prompt the inventor for only the information necessary for the attorney to draft the patent application. Finally, limiting the number of claims in a patent application will also reduce attorney time and Patent Office fees. These measures can save as much as 10 attorney hours.
The attorney rate is often the first variable that applicants attempt to minimize. This, however, may actually cost more in the long run, but that will be the subject of another post.
2) Prosecution
Some time after a patent application is filed, usually within 18 months, the Patent Office will examine the application to determine whether or not the application complies with the Patent Laws and Rules. Examination includes a prior art search the results of which are communicated to the applicant in a document referred to as an office action. The office action typically includes at least one prior art based rejection, which must be overcome in order for the patent to issue. The time necessary to respond to an office action will vary depending on how familiar the attorney is with the application, the number of references cited, the number of claims rejected, and the complexity of the invention and/or the rejection. Expect at least 8 hours for a fairly simple response to about 16 hours for an average response. At $300 per hour, expect to pay between $2,500 and $5,000 or more. If the Office is not convinced by the applicant's reply, it will issue another office action that must similarly be replied to. Applicants may receive multiple office actions in an application until the Office is satisfied or until the applicant abandons the application. The Office charges fees during prosecution that are not insubstantial. Overall, expect the cost of prosecution to be about that for preparing the patent application.
There are several ways to reduce the cost of prosecution similar to those discussed above. For example, applicants may want to review the prior art and determine if is as relevant as the Patent Office asserts. Applicants may also identify for the attorney the important differences between the invention and the prior art so that the attorney does not waste time arguing elements of the invention that are not as important to the applicant. The most significant factor, however, is to reduce the number of office actions in an application. This can only be accomplished with a quality set of claims that clearly distinguish the applicant's invention from the prior art without unnecessarily limiting the scope of the invention.
3) Post allowance
Post allowance is typically the least time consuming from the attorney's perspective. Expect to pay about $1000 in attorney or paralegal fees to prepare the documents for the patent to issue. The Patent Office charges issue fees and periodic maintenance fees.
** Note, the hourly rate and the general costs of the items discussed herein are merely estimates that will likely be repeated to you by at least one attorney when your are interviewing them for your patent application. That is not to say that you will not be able to find a professional to provide these services for less. I find that there are a number of solo practitioners that are willing to work with inventors at a reduced rate and/or under non-traditional fee agreements.
