Bare Minimum Fee for Entering US National Stage

The bare minimum official fee due upon filing a U.S. national phase patent application is the basic national fee. As of the date of this post, the basic filing fee is $280 for a large entity and $140 for a small entity.

What if the PCT application contains excess claims or multiple dependent claims that are not amended at the initial filing?

Even with multiple dependent claims and excess claims (i.e., more than 3 independent claims and/or 20 total claims), the only government fee due at the national stage initial filing is the basic filing fee.  37 CFR 1.492(g) states:

(g) If the excess claims fees required by paragraphs (d) and (e) of this section and multiple dependent claim fee required by paragraph (f) of this section are not paid with the basic national fee or on later presentation of the claims for which excess claims or multiple dependent claim fees are due, the fees required by paragraphs (d), (e), and (f) of this section must be paid or the claims canceled by amendment prior to the expiration of the time period set for reply by the Office in any notice of fee deficiency in order to avoid abandonment. (emphasis added)

When Should a Preliminary Amendment Be Filed?

When only the basic filing fee of a U.S. national stage application has been paid, the USPTO will issue a notice of fee deficiency setting forth an extendable 2-month deadline for response. In response to this notice of insufficiency, the applicant can file a preliminary amendment to amend and cancel claims to avoid paying excess claim fees. Any multiple dependencies can be removed to avoid the multiple dependent claim fee as well as to reduce the total number of claims that must be paid for.

This deferred option provides applicants with more time to decide which claims to pursue in the U.S. application while conserving cash flow at the initial filing stage.  Significant cost savings can be enjoyed particularly by foreign applicants with international applications containing a high number of claims and/or multiple dependencies.

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Vic Lin

Startup Patent Attorney, Cofounder at Innovation Capital Law Group
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