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The Cost of Patenting an Invention

In the U.S., if you hire a patent attorney to obtain a patent on your behalf, you will struggle to keep your legal costs under $10,000 and, in many cases, the total costs will have exceeded $20,000 by the time you receive your Letters Patent.

This is because getting a non-provisional, utility application drafted will cost anywhere from $5,000 to $15,000 depending on the complexity of the invention. Responding to a rejection (i.e., an Office Action), which is issued at least once in almost every patent application, will likely cost $1,500 to $3,000, and nearly 75% of applications in the U.S. receive anywhere between 2 to 6 rejections before grant according to recent data.

Despite the fact that the United States Patent and Trademark Office (USPTO) provides discounts of 50% on government fees to small entity applicants (and discounts of 75% to micro entity applicants), keeping the total of these fees under $2,000 by issuance will be difficult even for small entity applicants.

However, the alternative of doing the legal work yourself (i.e., being a pro se applicant) to lower costs will likely be a waste of money because it is virtually impossible for a layperson to understand all of the legal requirements that a patent application has to satisfy and to generate such a document. In Topliff v. Topliff (145 U.S. 156), the U.S. Supreme Court stated that a patent application is one of the most difficult legal instruments that can be drafted. Going pro se is made even more difficult by the fact that the applicant cannot add new matter to a filed application if the invention is to be entitled to the application filing date.

Also, even if a patent were to somehow issue, the grant of a patent does not guarantee that the patent is without defects. This is illustrated by the fact that even patents prosecuted by patent attorneys sometimes fail to hold up to scrutiny in court. The USPTO examination process is not meant to fix all of the flaws in a patent application, and the examination record leaves a trail of papers that makes the patent susceptible to legal arguments that are difficult for a pro se patentee to appreciate and guard against.

Moreover, for a small entity applicant, thousands of dollars will have to be paid additionally after grant merely to keep the patent alive, and most issued patents are difficult to sell and generate no return on investment.

However, despite all of these downsides, it is also well-documented that some legally sound patents that were able to survive challenges of accused infringers have generated windfalls of millions or billions of dollars for their owners (Centripetal Networks, Inc. v. Cisco Systems, Inc. or Idenix Pharmaceuticals Inc., et al. v Gilead Sciences Inc.). In other words, investing in competent legal work with the goal of obtaining a legally sound patent improves the odds of such a windfall exponentially if your invention also happens to be in great demand.

In contrast with a utility patent, a design patent can often be obtained with a budget of a few thousands dollars. While a design patent provides a shorter period of protection (15 years) and infringement of a design patent can be easily avoided in certain cases, it does provide a relatively inexpensive way to protect an article of manufacture from blatant copying of its design.

While the patent world is not an easy place for the little guys to roam in, it can be immensely rewarding for those that are able to play their cards right.




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