Average Legal Fees for U.S. Provisional Patent Application

Many inventors want to know what a qualified patent attorney will charge to prepare a provisional patent application that fully discloses their invention.  The only thing that should be missing in a provisional patent application compared to a non-provisional patent application is the “Claims” section (however, the individual drafting the provisional patent application still needs to have an understanding of what claims will be filed in the non-provisional).  If a provisional patent application is drafted properly the first time by a patent attorney, to prepare the later filed non-provisional patent application the patent attorney should only have to add the Claims section without changing the rest of the application.

Regarding legal fees, we tell inventors that a properly drafted provisional patent application will typically take approximately 80% of the time it takes us to prepare a non-provisional patent application.  Hence, you can expect legal fees for a provisional patent application to be approximately 80% of what a non-provisional patent application (i.e. only a 20% savings).  To give you a general idea on the typical legal fees charged by patent attorneys in the United States for a provisional patent application, the 2013 Report of the Economic Survey by the American Intellectual Property Law Association (AIPLA) reports that the average legal fees in the United States for preparing a provisional patent application are approximately $4,500 (this does not include patent drawings or the USPTO filing fee).  Of course the legal fees to prepare a quality provisional patent application for your invention will depend upon various factors such as the type of invention you have, the amount of time required to prepare the provisional patent application and the like. 

Since many experienced patent attorneys charge $400+ per hour, it is easy to see the total legal fees to prepare a provisional patent application can add up quickly if you want your provisional patent application drafted properly.  If a patent attorney quotes you a low fee to prepare your patent application, just work the math backwards and you can see the amount of time the patent attorney expects to put into writing your patent application.  For example, if the patent attorney quotes you only $2,000 to prepare the patent application and their hourly rate is $400/hour, the patent attorney is most likely expecting to put only 5 hours ($2,000 / $400 per hour = 5 hours) of time into writing your patent application including all communications with you.

 
Your Options: Self-Draft, Cheap Patent Service or Quality Patent Attorney

As an inventor who wants to file a provisional patent application seeking patent protection for your invention, you have the following three main options:

  • Option 1: Self-Draft
     
  • Option 2: Hire a Cheap Patent Service
     
  • Option 3: Hire a Quality Patent Attorney

 
– Option 1: Self-Drafting Provisional Patent Application

Self-drafting a provisional patent application requires the inventor to spend a lot of time learning the patent process, preparing patent drawings and preparing the written description of the invention.  The risks of making mistakes in the provisional patent application increase when an inventor self-drafts their own provisional patent application – particularly an inventor unfamiliar with the patent process.  While self-drafting of provisional patent applications is allowed by the USPTO, inventors should make themselves fully aware of the risks of self-drafting.  If you educate yourself about the risks of self-drafting and are willing to take those risks, it is recommended that you use a commercial software program such as Michael Neustel’s PatentWizard software (www.PatentWizard.com) to assist you in self-drafting (keep in mind that no software program can replace a competent patent attorney).

 
– Option 2: Pay a Low-Priced Patent Service to Prepare Provisional Patent Application

As with everything in life, if something seems too good to be true, it probably is.  Many inventors fall prey each year to cheap “patent services” which may or may not be a licensed patent attorney.  There are some patent services and individuals offering to prepare your provisional patent application for an extremely low fee (e.g. less than $2,000).  Keep in mind that some of these patent services do not even have a patent attorney licensed with the U.S. Patent & Trademark Office.  The famous quote by John Ruskin is very appropriate when considering hiring a low priced service provider:

It’s unwise to pay too much, but it’s worse to pay too little. When you pay too much, you lose a little money – that’s all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing it was bought to do. The common law of business balance prohibits paying a little and getting a lot – it can’t be done. If you deal with the lowest bidder, it is well to add something for the risk you run, and if you do that you will have enough to pay for something better.”  – John Ruskin

Another relevant business quote attributed to John Ruskin is “There is hardly anything in the world that some people cannot make a little worse and sell a little cheaper, and the people who consider price only are this man’s lawful prey.”  If you are still considering a low-priced patent service, you will want to at least get answers to the following questions from the patent service in writing before paying them any money:

  • Are you licensed with the U.S. Patent & Trademark Office?  What is your USPTO registration number?
     
    • NOTE: If they are not a licensed patent attorney, they cannot legally draft your provisional patent application for you and you should not use their service.
       
  • Will a registered patent attorney be preparing my patent application or will an unregistered individual be preparing my patent application?
     
  • How many years have you been drafting patent applications?
     
  • Why are your legal fees so much cheaper than other patent attorneys?
     
  • Do you have an engineering background and experience with the technology of my invention?

There are many other factors to consider in hiring a registered patent attorney, but the above questions are good to ask particularly when a quoted fee is too good to be true.  At the end of the day, you have to ask yourself “what could the patent rights to my invention be potentially worth” – if the answer to this question is greater than $100,000 then you definitely should avoid any patent service offering you a low fee to prepare your provisional patent application.


– Option 3: Hire a Quality Patent Attorney to Prepare Provisional Patent Application (or a Non-Provisional Patent Application)

If you decided you aren’t willing to take the risks of self-drafting or hiring a cheap patent service, then your best option is to hire a quality patent attorney to prepare your provisional patent application.  While it will not be cheap, hiring a patent attorney to prepare your provisional patent application is your best option if the patent rights to your invention will be potentially worth a significant amount of money.

 
Provisional Patent Application Requirements

Many individuals incorrectly believe that a provisional patent application is a simple document they can file with the USPTO that magically protects them with little effort or expense.  This is simply incorrect.  A provisional patent application is only as good as the subject matter that is included in the provisional patent application.

Failure to include all inventive subject matter in a provisional patent application can result in the loss of some or all of your patent rights.  Properly drafting the provisional patent application is more important now that the U.S. switched from a “first-to-invent” system to a “first inventor to file” system.  Hence, it is important to have a provisional patent application drafted competently the first time since you may not be able to fix it later. 

 
Simple Example of What Can Go Wrong

To help illustrate the importance of drafting a provisional patent application, assume you invented an invention having four features: Feature A, Feature B, Feature C and Feature D.  You file a cheap and simple provisional patent application on January 1, 2015 that has the following features of the invention included:

Your Provisional Patent Application (Filed January 1, 2015)
– Feature A (1/1/2015 Filing Date)
– Feature C (1/1/2015 Filing Date)
– Feature D (1/1/2015 Filing Date

Notice that Feature B is missing (or maybe just not adequately described/disclosed) from the provisional patent application.  Within one-year of the provisional application filing date, you hire a patent attorney to prepare a non-provisional patent application that includes all of the features of your invention including Feature B which is filed on December 31, 2015.  Unfortunately, the official filing date for Feature B will only be December 31, 2015 and not January 1, 2015.

A competitor then files a non-provisional patent application for a similar invention on January 2, 2015 that has the following features of the invention included:

Competitor’s Non-Provisional Patent Application (Filed February 1, 2015)
– Feature A (2/1/2015 Filing Date)
– Feature B (2/1/2015 Filing Date)
– Feature C (2/1/2015 Filing Date)
– Feature D (2/1/2015 Filing Date)

Notice how the competitor’s patent application properly includes Feature B in the original filing and is therefore Feature B in the competitor’s non-provisional patent application is entitled to a filing date of February 1, 2015 which is almost 11 months before the filing date for Feature B in your non-provisional patent application.  If Feature B for your invention is a significant patentable feature, your competitor would be entitled to the patent rights for Feature B under the United State’s first inventor to file system.


Closing Thoughts

As you can see, it is important that your initial patent application includes all of the potentially patentable subject matter for your invention.  While it is always tempting to choose an option that saves you money, keep in mind that the cheaper option may end up costing you some or all of your patent rights which could be a significantly greater financial loss to you than saving a few thousand dollars. 

Even if you decide to hire a registered patent attorney to prepare your patent application, you should closely review the patent application prepared by your patent attorney to ensure that it fully discloses your invention and all relevant features.  If you notice that a feature is potentially missing from the patent application, you need to immediately notify your patent attorney so they can update the patent application to include the feature since you cannot add new subject matter to a patent application after it is filed.