What’s the Patent Process? How much does a Patent Cost?

Thinking about pursuing a patent application for an invention? This article discusses the major decision points in the patent process as well as cost ranges for design patent applications, provisional patent applications, utility patent applications, and patentability searches. For more information on the specifics of registration steps, see our patent registration process page. For more information about billing options for patent projects, see our patent cost pricing options page.

Decision 1: Design Patent versus Utility Patent?

Design patents protect ornamental (non-functional) features. An example of this could be the design of a hammer handle to include features that are ornamental and in addition to function of a handle. The advantages of design patents include quicker prosecution leading generally to getting an issued patent much sooner than a utility patent as well as significantly lower cost. However, the scope of a design patent is more limited and generally easier to design around than a utility patent.

Timing: Generally, design patent applications can be prepared and filed within 2-4 weeks depending on complexity and the workload of the patent draftsman.

Process: After the design patent application is prepared and filed, the application will be assigned a United States Patent and Trademark Office (USPTO) examiner, who will issue an office action either rejecting/objecting to the claim or allowing the claim. Design patents typically go through the patent prosecution process in under a year.

Cost: The cost for design patent applications can range widely depending on the complexity of the application. Our firm typically charges $2,000-3,000 for a design patent application. That fee includes the USPTO fee of $480 (for a small entity) or $960 (for a large entity), professional fees, and the draftsman fee. In addition to a design patent application, you may want to also consider a copyright application as part of this process.

Decision 2: Provisional Patent Application versus Non-Provisional Patent Application?

If you wish to seek protection through a non-design patent application, the next decision is whether to file a provisional patent application or to file a non-provisional patent application. Provisional patent applications expire at the end of 12 months and cannot ever become an issued patent. The following is a discussion of the differences between the applications.

Provisional Patent Applications

Advantages: Provisional patent applications can be significantly less expensive than a non-provisional application, the filing fees are lower, and professional draftsman drawings are not required. These applications are also generally quicker to file allowing an inventor to prove their invention before committing the resources required to obtain a utility patent.

Disadvantages: In most cases, filing a provisional application adds cost to the patent process and has a hard deadline to file the non-provisional application. Missing this deadline can create prior art and other negative consequences.

Timing: Depending on complexity, a provisional patent application can be filed same day or take up to a month to prepare.

Process: Once the provisional application is filed and a filing receipt is obtained, there are no further steps required.

Cost: The costs for provisional patent applications can range widely depending on the complexity of the application. Our firm typically charges $3,000-$5,000 for a substantive application. The USPTO fee is $140 (for a small entity) or $280 (for a large entity).

Utility Patent Applications

Advantages: Utility patents provide their owner the right to prevent others from making, using, selling, offering for sale, and imported the patented invention. This can be an enormously valuable bundle of rights to exclude competition. Provisional patent applications cannot provide these rights.

Disadvantages: Utility patent applications tends to be more expensive than provisional applications and may involve lengthy prosecution with the USPTO before being issued. The applications may also be finally rejected after a significant investment by the application. Even worse, the application may become published to the public disclosing the details of the invention even thought a patent may not be granted.

Timing: Depending on complexity, attorney work load, and number of client revisions, utility patent applications can typically be prepared and filed within 2-6 weeks after the initial client meeting

Process: Our process begins with a substantive discussion of the proposed invention. Following that meeting the patent attorney will prepare the first draft of the applications and typically prepares two additional rounds of edits based on client comments before reaching a final version to be filed with the USPTO. After the application is filed and a filing receipt is obtained, it can take 1-6 years before the USPTO examiner issues the first office action. After that occurs, patent prosecution continues until a registered patent is obtained or the application is abandoned.

Cost: Like provisional patent applications, the cost for a utility application can range significantly, with an average of $6,000-$8,500 for professional fees. The USPTO fee is $860 (for a small entity) or $1,720 (for a large entity). Professional draftsman drawings average between $500-$2,000, depending on complexity.

Decision 3: Patentability Search or No Search?

Regardless of the decision between provisional and utility patent applications, an inventor also gets to choose whether to conduct a patentability search before filing the patent application.

Advantages: A search may uncover existing patents, published patent applications, and other materials (depending on the scope of the search) that present a barrier to getting a patent. Having this information in advance could save the costs of an unsuccessful patent application. The search also provides information to the patent attorney to use in drafting the patent claims. This can lead to reduced fees during the prosecution stage as well as fewer rejections by the USPTO examiner.

Disadvantages: Conducting a patentability search adds cost and time to the patenting process. Another possible disadvantage is that client and patent attorney are likely required to disclose the search results to the USPTO as part of the patent prosecution process. Finally, in certain circumstances, the possession of search results could be argued by a plaintiff’s lawyer to constitute knowledge of third-party patents making alleged infringement willful — in the event a patent infringement lawsuit is filed.

Timing: Generally, patentability searches take 2-3 weeks to perform.

Process: After an initial meeting, the patent attorney drafts a search letter giving instructions to the searcher. After reviewing the results, the patent attorney sends the results to the client for their own review and conducts a post-search meeting to discuss the results, whether to move forward with a patent application, and patenting strategy in light of the search results.

Cost: The costs for patentability searches can vary widely depending on the scope of the search and the level of opinion provided by the patent attorney. Our firm charges hourly for the patentability process. The fee has ranged historically $2,500-$4,000, depending on complexity of the results. Other firms may charge much less for searches with restricted review and opinion provided.

Key Takeaways on Patent Process and Patent Pricing

Once the invention is complete, you have a number of decisions to make regarding the patent process:

• Should you file a utility patent application or a design patent application?

• Should you file a provisional or non-provisional patent application?

• Before filing the application, should you conduct a patentability search?

See our Patent Services Overview page for more information about patents in general.

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