Have an Invention -- What are the Next Steps to Get a Patent?
What’s the Patenting 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 patenting process as well as typical 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 applications, see our patent cost pricing options page.
Executive Summary
Design Patent versus Utility Patent
Provisional Patent Application versus Non-Provisional Patent Application
Patentability Search or No Search
Key Takeaways Regarding the Patent Process and Cost
Patent Frequently Asked Questions (FAQs)
If you are interested in the trademark process, please see this post for details: What's the Trademark Registration Process and What Does It Cost?
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 the 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 application as well as significantly lower cost. However, the scope of protection for a design patent is more limited. In addition, design patents are generally easier to design around than utility patents.
Timing: Typically, 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. Firms typically charge $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. Read more about flat fee design patent applications.
In addition to a design patent application, you may want to also consider a copyright application as part of this process.
Should we file a Provisional Patent Application or a Utility Patent Application?
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 also referred to as a “utility” patent application. Provisional patent applications expire at the end of 12 months and cannot ever become an issued patent. However, a provisional patent application obtains a filing date at the USPTO, allowing the applicant to be the first to file an application in the technology area. This filing date can be extremely valuable where there is a “race to the Patent Office” situation or the potential for a public disclosure of the invention. Often, larger companies will not entertain discussions of licensing technology when no patent application is pending.
The following is a discussion of the differences between the two types of patent 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 out their invention and business concept before committing the resources required to obtain a utility patent. Another advantage is that, because provisional patent applications are quicker and easier to file, a provisional application may be the best choice where there is a deadline approaching that could bar a utility patent if an application is not filed timely.
Disadvantages: In most cases, filing a provisional application adds cost to the patenting process. A provisional patent application 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. Note that a utility application must be filed within one year of the provisional application filing date.
Cost: The cost for provisional patent applications can range widely depending on the complexity of the application. Firms typically charge $3,000-$5,000 for a substantive application; $1,000-$2,000 for basic applications. The USPTO fee is $140 (for a small entity) or $280 (for a large entity). Read more about flat fee provisional patent applications.
Utility Patent Applications
Advantages: Utility patents provide their owner the right to prevent others from making, using, selling, offering for sale, and importing 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 tend 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 applicant. Even worse, the application may become published to the public disclosing the details of the invention even thought a patent may never be granted.
Timing: Depending on complexity, attorney work load, and the number of client editing/commenting revisions, utility patent applications can typically be prepared and filed within 2-6 weeks after the initial client meeting.
Process: The utility application process begins with a substantive discussion of the proposed invention. Following that meeting, the patent attorney will prepare the first draft of the application 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. Read more about flat fee utility patent applications.
Should we conduct a patentability search before filing a patent application?
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 or skipping the search.
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 the 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 cost for patentability searches can vary widely depending on the scope of the search and the level of opinion provided by the patent attorney. Firms may charge hourly for the patentability search process or on a flat fee basis. A fee amount in the range of $2,500-$4,000 should be expected, depending on complexity of the results and the invention. Some patent attorneys may charge much less where only results are provided or a restricted opinion is provided. Read more about flat fee patentability searches.
Please note that a patentability search focuses on whether a patent application is likely to be successful. A “freedom to operate” opinion provides the client counseling on whether the invention would infringe the rights of third-party patents. While there is some overlap between these services, they are different and should not be confused.
Key Takeaways on the Patenting Process and Patent Pricing:
Decisions Regarding Patenting Strategy:
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?
Typical Price Ranges for Preparing and Filing Patent Applications:
Utility Patent Application — $7,500 - $12,000, including attorney’s fees, draftsman fee, and USPTO fees.
Design Patent Application — $2,000 - $3,000, including attorney’s fees, draftsman fee, and USPTO fees.
Provisional Patent Application — $3,000 - $5,000 for substantive applications; $1,000 - $2,000 for basic filings, includes attorney’s fees and USPTO fee.
Patentability Search — $2,500 - $4,000, spending on complexity.
Flat Fee Service Options:
See our Patent Services Overview page for more information about patents in general.
Patent Frequently Asked Questions (FAQs)
Are there different types of patents?
Yes, there are two main types of patents:
Utility Patents – Utility patents cover things and methods of using those things. The United States Patent Office states a device is eligible to receive a utility patent if it is an article of manufacture, machine, process, composition of matter, or an improvement on any of those. Utility patents cover what the device does and how it does it. This type of patent covers most inventions and is likely what you think of when you think of a patent.
Design Patents – Design patents cover the ornamental design of a thing.
How much does it cost to get a patent?
A utility patent can cost $5,000-$10,000 depending on the number of claims and drawings. There are additional costs for maintaining your patent for the full duration.
A design patent usually costs $2,000-$3,000.
How long does a patent last for?
A utility patent lasts 20 years from date you filed the application.
A design patent lasts 15 years from the date the design patent issues.
How long does it take to get a patent?
It can take 3-5 years to receive a patent depending on the technology. Design patents usually take less time than utility patents.
How do I know if I can get a patent on my invention?
One important thing to do before pursuing a patent is doing a Patent Search. A patent search looks through issued patents, published applications, abandoned applications, and international applications for any document that touches on the important features of your invention. Once this search has been done you can discuss the likelihood of receiving a patent with a patent attorney.
What determines if I get a patent or not?
The Patent Office will examine your application for three requirements. The invention must be novel (new or never done in that way before), useful (must do something), and it must be not obvious to one of skill in the art at the time of filing.
How do they determine if it is not obvious?
The Patent Office will look over the application and determine the scope of the invention. They will then look for any patents, patent applications, articles, devices in the public, and any other occurrence of things within the scope of the invention. They will then compare how different your application is from these different devices.
If I have an idea how soon should I file for a patent?
You need to have a concrete idea of what your invention is before you can submit an application. The sooner you submit your application the better as the US is a first-to-file system.
Who can I tell about my invention?
You should not tell anyone who is not working on the invention with you. If there is someone you need to tell for any reason try to have them sign a non-disclosure agreement or another agreement to keep secret what you tell them.
What is a provisional patent application?
A provisional patent application does not get examined by the Patent Office, but does save your date for priority. You have one year from this date to file a non-provisional application. This gives you time to further refine your invention.
What all is in a patent application?
Your patent application will include a background of the invention, a summary, a brief and detailed description of the invention, an abstract, and a set of claims. The claims will determine the scope of your patent and are the heart of the patent. You may also include figures if it is appropriate for your invention that show how it is set up and its different components.
Have questions about the patent process?
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