What is a realistic cost estimate for obtaining a utility patent?
Why write another post on patent costs when I’ve already written several articles, such as initial filing estimates, start-to-finish costs, prices of Office Action responses, and more? If you search for “how much does a utility patent cost” online, you may get some rough numbers. What may be difficult to find is a helpful summary of the utility patent process, and associated costs along the way.
My goal with this post is to shed some light on the utility patent process so that you will have a better understanding of the costs involved in getting a utility patent. It may help to think of the utility patent process in three stages:
- Initial filing;
- Responding to Office Action(s);
- Grant, if application is allowed.
Keep in mind that the final stage of allowance is by no means guaranteed. The path to an allowance of a utility patent may be long and uncertain.
How much does it cost to draft and file a utility patent application?
Attorney’s fees for preparing a utility patent application may range from $8,500 to over $15,000. USPTO and illustrator fees will add another $1,000 to $2,500 depending upon whether the applicant is a small entity (e.g., company with fewer than 500 employees) or large entity. A number of factors will affect our fees for the initial filing of a utility patent application:
- complexity of technology;
- number of embodiments (examples); and
- number of different aspects of invention (e.g., system with multiple unique components, device plus method).
How can you control upfront patent costs?
While the complexity of your innovation might not be adjustable, you do have some control over the number of both embodiments and aspects of the invention to pursue initially. Decreasing your examples and/or components may reduce the initial patent filing cost.
Suppose you have a new system with four components or aspects, each of which is potentially patentable. You may choose to start with covering one or two more urgent aspects. This may reduce the initial filing cost, but there will still be a price to pay in covering the remaining aspects later. Also, you will have the disadvantage of a later filing date for adding the new matter in continuing applications.
Middle stage: ongoing patent prosecution costs
With a nearly 90% chance of receiving an Office Action in a utility patent application, you should expect and budget for responding to rejections. Recent patent statistics indicate an average of almost two Office Actions in each utility patent application. Keep in mind that this average would include abandoned cases where the applicant gave up. Perhaps a more relevant metric would be the Office Actions per grant ratio, which varies widely.
Therefore, it is entirely possible that you may have to deal with three or more Office Actions if you choose to keep fighting against challenging claim rejections or difficult patent examiners.
The cost of responding to a patent Office Action ranges from $900 to to $2,800. The price of an Office Action response depends on these factors:
- number of prior art references cited by the Examiner
- number of claims to be amended or added
- whether an ineligible subject matter rejection under Section 101 needs to be addressed
- any required drawing corrections
- any allowable claims or subject matter
In certain situations, it may make sense to talk to the Examiner before filing a written Office Action response. Conducting an Examiner Interview costs $600 at our firm, and we usually recommend this strategy for making further progress. A productive Examiner Interview can save you thousands of dollars and several months of time by avoiding a further Office Action.
If you receive a second Office Action, it will most likely be a “final” Office Action. Most Final Office Actions will require the filing of a Request for Continued Examination (RCE) that incurs a USPTO fee starting at $680.
If multiple Office Action response have not resulted in a satisfactory, you might need to consider an appeal which starts at around $5,000.
If you have any related patent applications (e.g., foreign applications or other US applications dealing with similar technology), you may have to file an Information Disclosure Statement (IDS) to submit known prior art.
Finish line: allowance and issue fee
If you reach the goal of obtaining a Notice of Allowance, you will need to pay the issue fee. Our firm charges a flat rate for paying the issue fee and sending the original patent certificate to the client, which will total approximately $1,100 for a small entity.
What are average costs for a typical utility patent application?
Let’s walk through a timeline of a typical utility patent application and associated costs:
- Initial filing: $10,000 (for technology with low to medium complexity)
- Filing an IDS: $200
- Office Action #1 (~15-24 months from filing date) with Examiner Interview: $2,800
- Office Action #2 (~24-40 months from filing date) with Request for Continued Examination: $2,800
- Office Action #3: $2,200
- Payment of Issue Fee: $1,100
Based on the above hypothetical scenario of only two Office Actions to allowance, the total cost estimate would approximately $20,000. Several factors may increase the cost, such as extensions of time for Office Action responses, additional Office Actions, Restriction Requirements, greater complexity of technology, higher number of examples/embodiments, etc.
For an invention with low to medium complexity, it would be reasonable budget $20,000 for a utility patent application with the expectation that costs may increase due to the factors discussed above. Think of this estimate more as a floor as opposed to a ceiling for utility patent costs.