Of all types of intellectual property, patent protection is the most expensive and most time intensive to obtain. Generally having an attorney who specializes in patent law file a patent will cost between $12,000 and $22,000. The cost after filing will vary depending on the complexity of the claims that the applicant is trying to get and the number of responses that must be drafted to address the USPTO’s Office Actions.
As the complexity and number of responses increase the number of billable attorney hours required on the patent also increases, which increases the cost. The costs above include the fees charged by the USPTO, which can be substantial.
Those price numbers tend to give people a bit of a shock especially in light of the relative cheapness of obtaining a trademark or copyright registration. It is possible that at this point in the article you are certain that you have heard of better “deals” for obtaining a patent. Perhaps you have been up late at night wondering if your fledgling company is going to survive with all the bigger fish in the sea, and out of nowhere, as if in answer to your prayers, the man on the television promises to help protect your inventions on the cheap! Also, there are all those websites that promise to do a patent application for $4,000. Are those advertisers lying to you about the cost?
Before you call that number on your screen, there are a couple of considerations that should be kept in mind before you enlist the service of a bargain basement provider of patent services. There is an old joke about tires for sale at one half price. After you are on the hook, you find you have to pay for all the extras, like “Do you want them on the car?” While in the beginning it may seem like the best way to save money, the low cost patent drafter may not be a bargain at all in the long run. Once an inventor has paid for the drafting of a patent, the drafter loses incentive to spend time on the application.
This can be especially detrimental when the patent application is in a field that is unfamiliar to the drafter and/or the patent is very complicated. Furthermore, many times the costs quoted by these services contain fine print that indicates that the “fixed” cost is only for the services provided by the drafter. This means that all the costs levied by the USPTO will be passed on to the applicant on top of the quoted price. The fixed costs also do not usually include answering office actions, any patent searching, and other parts of patent prosecution that are commonly necessary.
It is possible that in some circumstances a fixed cost or lower priced patent drafter may save your company significant money. Just be very careful about interviewing these potential candidates on their background in patent drafting and know exactly what is covered in the services for the quoted price.
The answer is that having an attorney for this job is usually a good idea.4 After reading about the cost of having a patent prosecuted and the pitfalls of going to a low cost patent drafter, you are probably asking whether you would be better off drafting the patent yourself. Well, you can take out your own infected appendix but it probably isn’t the best idea, even if you do own the complete set of Do It Yourself Home Surgery Books. Unfortunately for small companies and individuals, patent law is one of the most complex areas of the law. Although an individual is allowed to file for a patent in his own name with no formal training, the authors strongly recommend against it.
Patent law is one of the few areas of law that requires an additional test, beyond the regular bar exam, in order to be allowed to practice before the USPTO. Furthermore, only people with scientific backgrounds are allowed to take the examination and even then, the test has a low pass rate. This ensures that only people with scientific training, an understanding of the rules of the patent office, and an understanding of patent drafting are allowed to help others apply for a patent. When an individual passes the test he or she is assigned a Registration number that allows him or her to practice in front of the PTO.5
Having an experienced practitioner will make the process much smoother and help to ensure that the broadest possible scope of patent protection is obtained. Recall earlier where the patent claims were analogized to a foreign language; patent attorneys are your interpreters for this world. If you do chose to go it alone there is every possibility that one word might make your patent essentially unenforceable and allow competitors to appropriate your technology freely.
4 Some types of intellectual property protection, like copyright registration, are fairly straightforward and most people can handle that type of project on their own. Patent applications are much more complex.
5 Incidentally, whenever you seek help drafting a patent you should inquire as to whether the person has passed the USPTO examination and is eligible to practice before the USPTO.