How much should a provisional patent application cost?
The question you should be asking is not “How much does a provisional patent cost?” That’s because the cost of a provisional patent application can range widely and wildly. At the lowest end of the cost range, you can prepare and file a do-it-yourself (DIY) provisional. You would pay only the USPTO fee of $120 for a small entity, or $60 for a micro entity. On the high end of the cost range, you can pay a big law firm nearly the full cost of drafting a nonprovisional patent application, which can exceed $20,000.
Instead, let’s ask the smarter question – “How much should a provisional patent application cost?” – because at the end of the day, you want to get the most value for what you pay.
What is the goal of your provisional patent application?
If you earnestly intend to follow up with a nonprovisional application, then your provisional should contain sufficient details to support your forthcoming nonprovisional. Not everyone, however, is determined to embark on the long journey to obtain a utility patent.
Suppose you merely want to get patent pending status. You might not yet have proof of concept or sufficient confidence to move forward with patenting. Perhaps you merely want to delay the competition for a period of time. These are valid considerations to factor in determining a price range for your provisional.
What should you expect for a PPA that costs less than $1,000?
For a provisional that costs less than $1,000, you get what you pay for. Perhaps, you might get a couple pages of written description and a drawing or two. Your main concern with paying less than $1,000 for a provisional is whether it will adequately support your subsequent nonprovisional application. At such low costs, you would incur a high risk that new matter will need to be added to your nonprovisional. Such new matter will not get the benefit of the earlier provisional filing date.
Recognize that this huge risk with a cheap provisional may lead to irrevocable errors. Even if you come up with more money later, you will not be able to go back in time to fix those problems.
A Balanced Approach: What is a smart cost to pay for a provisional?
A smarter approach may be to work backward from the cost of filing a nonprovisional patent application.
At our firm, we first determine the cost for a nonprovisional patent application, and then reduce it by 50% for drafting and filing the provisional application. When you’re ready to file the nonprovisional application, you pay the remaining half of the attorney’s fees plus USPTO costs and any illustrator fees.
For example, suppose we review your invention disclosure or a very brief summary of your concept, and determine that the cost of a nonprovisional would be $8,000. the cost of drafting and filing your provisional application, therefore, would be $4,000. Within one year from the provisional filing date, the remaining cost to upgrade to a nonprovisional application would be another $4,000.
This 50-50 split enables the patent attorney to devote sufficient time and effort in drafting a more detailed provisional. And a more detailed provisional will provide greater support for a nonprovisional as compared to a scant provisional.
This is fair to both you and the patent attorney. When the time comes for filing the nonprovisional application, the remaining half of the fees will enable the patent attorney to draft claims and, if necessary, supplement the disclosure to a reasonable degree.
Another approach would be to pay nearly the full cost of the nonprovisional, but file the utility application as a provisional in order to buy time. You may have reasons for delaying the examination of your utility patent application. This approach makes sense when you are sure about filing the nonprovisional application.
What is the sweet spot of a provisional patent cost?
Perhaps you need time to figure out if your new product will be commercially successful enough to justify the cost of pursuing a utility patent. At the same time, you want to prevent others from being first to file with the Patent Office once they see your product launched.
By filing a provisional for half the cost of a nonprovisional, you accomplish both goals:
- Defer 50% of the utility patent filing costs to first see if your product will justify further investment in patent protection; and
- Be the first to file (hopefully) by securing an earlier patent filing date.
Let’s use an example. Suppose you received a flat fee quote of $8,500 for drafting your nonprovisional patent application, not including USPTO and illustrator fees. Using the 50%-50% approach above, the initial cost of $4,250 for drafting a provisional provides a balanced approach that can preserve cashflow and buy time.
If and when you determine that it makes sense to follow through with utility patent protection, you can then invest in the remaining half to convert your provisional to a nonprovisional. Keep in mind you have 12 months from the provisional filing date to make this decision.
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