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How Much Should A Patent Application Cost?

by Curtis L. Harrington

Inventors seeking to obtain patent protection for the first time generally have little idea of either the requirements of the patent laws, how much it should cost to obtain a patent, or how to select someone to help him apply for his patent.

Most inventors are applying for either a design patent or a utility patent. A design patent protects the aesthetic design of the exterior of a utilitarian item, such as a lamp or an athletic shoe. A utility patent gives protection for an article of manufacture, a chemical substance, the way a machine works or the way a chemical process works.

The cost and quality of a design patent application is driven by the number and quality of drawings describing the applied for design. Good patent drawings can be obtained at a price of from about $85 per sheet for average quality drawings to about $120 per sheet for excellent quality drawings. In a design case, don't scrimp on the drawings because they are the heart of the case. The attorney prepared portion of the case includes a written description of the drawings, and a single standard claim. The filing fee is $145 for a small entity (an inventor with less than 500 employees). The only other cost is the attorney's fee for his time in preparing the patent application, which is typically spent in drafting the specification, contacting the draftsman to instruct him on how to prepare the drawings, and preparing the papers for execution of the patent application. Because of the relatively slight time demands, most attorneys will simply charge a fixed fee for this sort of case in the range of $400 to $600.

Assuming an average attorney's fee is $500, two sheets of high quality drawings and filing fee of $145, and express mailing charges, an inventor should be able to file a design patent application for less than $1000.

A utility patent application is far different and more complex. The application includes a background, summary, description of drawings, detailed description, and claims written in a rather specialized language, in addition to the drawings and filing fee. The drawings cost per sheet is comparable to that for design patent applications, but the small entity filing fee is $355. However, because of the lengthy nature of the text which must be drafted by the attorney, the cost of preparing the utility patent application is driven by and especially sensitive to the attorney charges, and the quality of the case is sensitive to a proper selection of the attorney to prepare the application.

The three main technology categories are chemical, electrical and mechanical. Mechanical cases can be prepared by most attorneys with a general technical background. Electrical engineering patent attorneys can usually handle both electrical and mechanical case. Chemical engineering patent attorneys can usually handle both chemical and mechanical cases. The inventor should be certain that the patent attorney drafting the patent application is familiar with the technical area of the invention and understands the invention thoroughly.

If the attorney is not familiar with the technical area of the invention, it is the inventor who pays for the attorney's learning curve, either during the early meetings or during the time spent on subsequent significant text and drawings changes due to a lack of understanding of the invention.

Generally, the attorney's time in preparing a utility patent application can widely vary between applications. Some patent applications can be more than a hundred type written double spaced pages, or less than 5 such pages. The two factors which will affect the attorney fee for preparing the utility patent application is the attorney's hourly rate and the amount of time required. But what is a proper measure of these two quantities?

The attorney's fee depends upon several factors which the inventor must take into consideration. From a practical standpoint, the number of years of experience of the attorney and his education are two factors which could justifiably cause the hourly fee to rise. These two factors work to the inventor's advantage, however. An experienced patent attorney would be expected to complete the case in less time, thus reducing the other factor in overall cost. A patent attorney who is well educated in the technical area in which the patent application is to be prepared would be expected to take less time to learn the case, understand it, and would be better equipped to write about it. Someone with an advanced degree in the invention technical area, for example would be expected to be better acquainted with the case, and do a better job with less time needed for explanations and a good understanding of the case.

There are other factors related to the attorneys fee which work against the inventor. If the attorney is a partner in a large firm with several associates, chances are that the fees will be set higher than usual in order to compensate the partner taking the case, the time for the partner to explain the invention to the associate, the time for the associate to prepare the partner application, the time for the partner toreview the case and for the associate to amend it based upon the partner's recommendations. This process is quite inefficient, and it would be to the advantage of the inventor to make sure that the attorney he is dealing with is the one who will write the patent application.

Another factor is the attorney's office. If the office appears efficient in its utilization of space, then the overhead is probably such that the fees will not need to be extraordinarily high in order to compensate the attorney for his time. On the other hand, office splendor or penthouse location should indicate to the inventor that a significant portion of his fee is going to the building landlord, rather than as an incentive in compensating the attorney for the attorney's personal time and efforts. Thus the inventor should select an attorney at a given hourly rate in comparison to the attorney's education and experience, and should also factor in the attorney's office accouterments.

One objective measure of cost is dollars per page of the patent application including the claims and abstract, although the number of pages will not be determined until the case is finished. On average, patent cases seem to cost about $100 per page (double spaced, 81/2 x 11 inch paper). In looking at my cases over the past two years, this is the average.

I have further found that the higher cost cases were ones in which the inventor made a decision to add more embodiments of the invention after the first draft. This can add significant cost without adding much additional length to the case, especially where it takes time to completely integrate newly added embodiments. The case cost also rises when the inventor makes changes to the fist draft, followed by different changes to the second draft. A similar cause of higher costs are in cases where the inventor doesn't provide a complete set of materials for the case, leaving out portions which will eventually become necessary. Once the preparation of the patent application is begun , integrating a set of subsequently supplied materials into the applications is always more difficult than incorporating them from the outset.

The lower cost cases are those in which the inventor collects all materials, drawings, descriptions, and models and turns them over to the patent attorney at one time. The closer the process approaches a two stage procedure where at first the inventor spends no more than enough time at a fist meeting to make sure the patent attorney understands the invention, and secondly where the inventor subsequently marks all of his explicit corrections to the fist draft, the more the cost can be reduced, This procedure insures that the attorney's time is spent efficiently .

Further cost savings can be obtained, especially in more involved cases, by providing the patent attorney with a full description of the problems which the invention solves, summary, and operating description of the invention, as well as a list of named structures and parts. This is especially useful in diskette form, especially where the attorney prepares the patent application directly on a personal computer. Although there will not be a page for-page savings, since the provided materials will still have to be integrated and re worked, the savings can be substantial in larger cases.

Another way in which inventors can cut costs is to request a fixed fee for preparing the case, based upon the two stage procedure outlined above (i.e. no additions to the case after the work is begun). Remember that a fixed fee is a contract bet in which the attorney will try to make an estimate which is low enough to get the job, but also high enough to cover any additional work which may not be apparent during the initial interview and presentation of the invention. Making a long-term estimate for fees occurring after the filing of the patent application is usually counterproductive due to the uncertainty on both sides of such an arrangement.

Inventors should also consider the time of completion the inventor expects from the patent attorney. Most patent attorneys charge a premium for rush work. The inventor should get an estimate of cost, before discussing the timing, to ferret out a timing cost differential. In cases where drawings are required, a short turnaround timing objective may be limited by the patent draftsman's schedule, requiring the draftsman's assent to the short turnaround as well.

In addition to the cost parameters for the patent application, as outlined above, the patent attorney should have a schedule of services, and standard charges for those services, to enable potential clients to readily assess the cost\benefit advantage of the firm. The firm should have a standard letter or booklet outlining options relating to the patent application, including petitions to make special which allow applicants to have their patent applications examined out of turn, foreign patent application filing, and the filing of an assignment, to name a few.

Since the object of practicing in the patent field is to educate the client to make informed choices, providing the above information is a minimum requirement. Even if a firm is fortunate enough to have been able to position itself in the higher priced section of the market, it should still provide its prices and charges prominently in order that the more cost sensitive clients can make an early evaluation in a minimum amount of time.

CURTIS L. HARRINGBONE practices before the state bars of California, Texas, and Arizona, as well as before the U.S. District Court, the U.S. Court of Appeals, Fifth and Ninth Circuits, the U.S. Supreme Court and is registered to practice before U.S. Patent and Trademark Office. His education includes a B.S. Chemistry; M.S. Chemical Engineering; M.S. Electrical Engineering; a Master of Business Administration; and Juris Doctorate. He is a member of the Long Beach Bar Association Board of Governors, and the Japan America Society of Southern California. His practice areas include Patent, Trademark, Copyright and Trade secret law.

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