Things every client should know about patents

How much does it typically cost to obtain a patent?

In most cases, the cost for the filing of a patent application is driven by four factors:

(a) the hourly rate of the patent practitioner you’ve hired;

(b )the number of hours it takes that practitioner to prepare and file the application;

(c) the cost of any subsidiary services (e.g., performance of a patent search; preparation of formal patent drawings by a patent draftsman); and

(d) associated governmental fees.

Thus, if you’ve hired a patent attorney to prepare a patent application for you, and (a) he charges $200.00 per hour; (b) the application requires thirty (30) hours of effort on his part to prepare and file it; (c) ten (10) sheets of drawings are prepared by a PTO draftsman charging $75.00 per sheet; and (d) the PTO filing-related filing fees amount to $500.00, then your total bill will come to approximately ($200.00 x 30) + ($75.00 x 10) + $500.00 = $6,000.00 + $750.00 + $500.00 = $7,250.00.

Thus, if you want to control / minimize cost, then it is extremely important to do your best to communicate well with your patent attorney. If the two of you communicate naturally and effectively, and you are actively engaged in supporting the application preparation process, then it is likely that the two of you will generate a well-written application in an efficient block of time.

Two caveats follow.

First, if you’re offered the opportunity to hire a patent attorney on a “flat fee” basis, make sure to be very clear, up front, about the invention to be protected and the desired depth and breadth of protection. In point of fact, nearly all patent attorneys (even those who do a fair amount of “flat fee” - type work) do a nontrivial amount of work by the hour, so ask early on about the patent attorney’s customary hourly rate. That way, if he advises that his customary hourly rate is $250.00 per hour, and he later quotes you a flat fee of $5000.00 for the preparation of the patent application, you know that he is estimating that he is going to spend approximately twenty (20) hours preparing the application. If, based upon your understanding of the technology, that number seems low, then you know that the two of you should have some additional discussion about the depth, breadth, scope and strength of the protection you seek.

Second, be aware of the fact that the filing of a patent application isn’t the end of the process. Rather, it’s the beginning. Communications from the U.S. Patent and Trademark Office (the “PTO”) will follow the filing of the application, and dealing with those communications will require the expenditure of additional time and additional governmental fees. As unpleasant as this may be, it’s just a simple fact of life in dealing with the PTO.

Thus, don’t hesitate to ask your patent attorney to explain some of the basics regarding how the patenting process works and how the PTO’s fee schedules work as well. The fees and expenses that lie down the road are generally not as substantial as those you endure at the beginning in preparing and filing the application, but they aren’t trivial either, so talking about this with your patent attorney will help you to understand (and feel good about) the process that lies ahead. In most cases, after the application is filed, it will remain pending at the U.S. Patent and Trademark Office for 1-3 years before it issues, so post-filing costs won’t be incurred for quite some time, and, in the mean time, while your application is officially pending at the Office, you get to use the well-known phrase “patent pending” in your marketing materials.