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utility US patent application

A Utility Patent Decision Help Guide
The Patent Application Process, an interactive flowchart

General patent process
Why do a patentability search
Bay Area IP’s patent practice
Simplest ways to save money
Other money saving options available

Flat-rate patent application drafting service
A maximum “not to exceed” fee amount
You write we perfect
You do the drawings we perfect

Full Utility Patent Cost Estimates
Patent Prosecution
Typical Budgets For Our Clients
How will we meet
How to get started?

Patent Application Process Overview

The nonprovisional, Utility Patent Application process generally consists of invention, searching for prior-art, getting a patentability opinion, applying for a patent, and prosecuting the application until the patent is awarded. See our illustrated interactive flowchart of the patent process for more details. If you are interested in a Provisional Patent Application please read our Provisional Application web page. To answer many questions you may have, it may be helpful to review our A Utility Patent Decision Help Guide, FAQ on Patents, basic Patent information, and our overview of the Utility Patent Application practice.

Why do a patentability search

In light of a seminal court decision referred to as Festo, it is now practically mandatory to do an extensive prior-art patentability search to ensure that your patent will have maximal scope through an important legal mechanism known as the Doctrine of Equivalence. Before you have your patent application prepared, we strongly urge you to have a patent prior-art search and patentability opinion done by a professional. For more details, please review our patentability search page.

Bay Area IP’s patent practice

Bay Area Intellectual Property Group (Bay Area IP) is a highly competitive firm whose patent practice has a great depth and breadth of experience. This experience drives our holistic approach that not only achieves high patent quality, but also efficiently delivers a high quality of service. We strive for a 4 week turnaround time for average patent application drafts, and usually can rush a job to meet a bar date depending on our workload.

At Bay Area IP, we are particularly adept in employing the wide array of patent prosecution procedures sometimes necessary to attain an awarded patent. Typical procedures used, for example, include protests, appeals, and petitions. Bay Area IP has experience in drafting and/or prosecuting patent applications in a wide variety of areas including computer software, electronics hardware, semiconductor packaging, and semiconductor processing. We are continually broadening our technical expertise to better serve you, and reduce your cost. As an incentive, we offer a special commitment to you that we will not charge you for time we spend, if any, learning the prior-art technology to understand your invention. Many firms will bill you for their “education time” by obscuring it in patent preparation or client meeting time. Usually, patent attorneys spend most of their learning time on the first patent application, and learning time diminishes quickly thereafter because inventions tend to be incremental improvements in the same technology area.

It is generally accepted that the specification and claims of a patent constitute one of the most difficult legal instruments to draft with accuracy. The critical areas where problems often occur are in understanding /appreciation of the invention, drafting/prosecuting the application, and in claim interpretation by the courts. One of Bay Area IP’s key advantages is that a seasoned scientist, engineer, and inventor will draft and prosecute your patent application to ensure that your invention is accurately defined and claimed. Beyond solid specification and claims drafting skills, a strong technological grasp of the invention and prior-art is also imperative to achieving maximal claim scope and minimal patent contamination, which contamination weakens the patent in litigation. Unfortunately, even what was a well-written patent yesterday may loose much of its value after an unfavorable precedence set by a new court decision. That is why Bay Area IP continually analyzes and assesses recent legal decisions to design an optimal patent practice. We also keep a close eye on major court cases in-progress and may preemptively adjust our patent practice to hedge against potential changes in law. Bay Area IP actively engages its assets and time in all of these critical areas to maximize the value of your awarded patent.

We also believe in educating you in plain English about legal or practical issues that require an opportunity-cost decision in our patent practice. The standard practice at many, if not most, other firms is for the patent attorney to make all the decisions for you, and this is our default practice as well; however, for those clients that desire a more personalized service and tighter control of their patent’s risk-reward profile, Bay Area IP will explain to you the issues, recommend a course of action, and execute your final will.

Simplest ways to save money when patenting

At Bay Area IP we make every attempt to minimize your costs. Unlike many IP firms in the industry, we understand that when we lower your cost to acquire a patent, you are more likely to come back to us to patent your new inventions. Generally speaking, you save money to the extent you do work that reduces our time spent on your case. The simplest way our clients save money is to do the following:

1. Prepare a very detailed description of your invention, drawing, etc.

2. Do your own prior-art search.

A prior-art search helps us write the claims and background sections of the application more efficiently and effectively.

Other patent application money saving options available

There are several other money saving and/or cost containment options that you may take advantage of in any combination. They are as follows:

1. Flat-rate patent application drafting service

2. a maximum “not to exceed” fee amount

3. You write we perfect

4. You do the drawings we perfect

Flat-rate patent application drafting service

Most inventions of simple and average complexity are eligible for our flat-fee cost containment offer if the effort required for us to draft a patent application for your invention is highly predictable. Bay Area IP can work on a flat-fee basis if your case meets some very specific conditions, which are as follows:

The invention is not too complex.
The invention is well defined and of a nature that lends itself to a very predictable level of complexity.
You must provide a highly detailed disclosure of the invention according to our instructions.
We must agree on a fixed level of complexity prior to drafting the application, which complexity level is based on your initial disclosure (e.g., cannot substantially change alternative embodiments, invention description, claim scope, drawings, etc.).
Any substantial deviation from items 1 through 4 will negate the flat-fee cost structure, and switch to being billed by the hour.

Click Here for information to help you decide if the Flat-fee approach is right for you. To find out definitively if your case is eligible for our flat-fee cost structure, follow the instructions in our get started page web page.

A maximum “not to exceed” patent application fee amount

If Bay Area IP can accept you as a client, after the reception of a detailed description of the invention, including any drawings, Bay Area IP can provide you with a written price estimate for the services you will need. The estimate quoted is close to the final cost incurred in almost all cases. There are some exceptional cases where unforeseen complexity or client changes from the initial disclosure will drive up costs somewhat beyond the estimate. However, we appreciate that some clients are particularly cost-sensitive and require extra level of predictability. Although, we will contact you with detailed information as soon as we expect the estimate to be exceeded, the client may wish to negotiate with the firm a maximum “not to exceed” fee amount. With this fee set in writing in advance of preparing the patent application, we can manage the complexity of the application such that it does not exceed the amount agreed upon in writing.

You write we perfect the patent application

Click Here for information to help you decide if the Flat-fee approach is right for you.

Most patent firms in the industry do not accept, or at least are extremely reluctant to work from, a client’s first draft of the specification. The reason for a patent attorney to avoid this is very understandable. That is, it is not possible to estimate with reasonable accuracy, in advance, how much time the client’s draft will save the attorney, as the client’s draft may not be usable, or only partially so, in preparing the final application. It often turns out to be more time consuming for us to perfect the client’s draft than if we had prepared it from scratch. This is increasingly true because the current trend in case law is placing more “land mines” than ever throughout the patent specification and claims. In addition to the multitude of legal constraints on drafting an optimal application, there are many stylistic considerations that improve the chance the patent examiner will favorably review the application. In total, there are a vast number of flaws, often obscure and time consuming to find, that a draft application may have. It is for at least this reason that it may cost as much to arrive at an estimated cost to fix a client’s draft application than it would cost to prepare an application from scratch.

However, it is not always the case that a client’s draft saves little or nothing in final patent application costs. Some clients have significant experience in applying for patents combined with good technical writing skills to produce a very useful document. In such cases, it is possible for the client to save thousands of dollars in patent application costs. In general, this high level of technical writing skill, or anything close to it, will not be the norm for most clients providing a first draft. Most clients should regard submitting any documentation of their invention as constructive information that assists the patent attorney to do a better job. As with any creation, the more time spent in perfecting it the higher the quality. Yet, in general, to keep patent application costs at an affordable level patent attorneys cannot spend unlimited time perfecting an application, but must spread their fixed time budget over the whole application. If the client provides a better quality disclosure, however, their patent attorney can instead spend more time on perfecting legal details and less time on technical writing and figuring out, or describing, how the invention works. Hence, the more detailed and well organized your disclosure is the higher the quality level the patent attorney can achieve in the final draft. For this reason, it is always in the client’s interest to submit a high quality, computer readable disclosure that better gathers and organizes the information the patent application requires, such as, a detailed description of the invention and the most relevant background prior-art information.

Nonetheless, to increase the volume of patents you apply for the firm extends a unique offer that we will consider working from a first draft that you submit. As discussed in the above paragraphs, it is generally not possible to give you an estimate of how much time, if any, your draft will save us. To give you the best chance of submitting something usable we will provide you a guideline including basic tips to writing your draft. The first draft you provide will only be used for the specification and not the claims of the application. Again, as discussed in the previous paragraphs, we cannot offer any guarantee that an actual cost reduction will be realized; however, we will make a good faith effort to leverage your draft on a best-efforts basis. You can save anywhere from zero to thousands depending on the quality of your draft. As an added service, we provide you some basic feedback so that you can make a more useful draft the next time. The key concept to understand here is that in any case your draft will only help you. That is, in all three possible cases you win, which cases are as follows:

1. Your specification draft is useable and reduces our preparation time up to 50%.

Result: you save up to 50% off our standard patent application fee, but might have a patent of average quality.

2. Your specification draft is useable and reduces our preparation time up to 50%, but you request that we use the saved time towards perfecting the application.

Result: you pay the normal patent application fee, but your patent, if awarded, will be of higher quality.

3. Your specification draft is not a useable draft and does not significantly reduce our preparation time.

Result: Although it may not have saved drafting time the added information will likely increase the quality of the patent if awarded.

If you have the time and believe that your technical writing skills applied under our general instruction can produce usable quality material, then maybe this option is for you. For more information contact us for a free initial consultation to get started.

You do the patent drawings we perfect

The US patent office (USPTO) has formal requirements that submitted drawings must satisfy for the USPTO to accept them. Bay Area IP, like most IP firms, will produce formal drawings based on your informal drawings, or sketches, of the invention. However, few, if any, firms will consider applying client-made drawings towards satisfying the USPTO drawing requirements. However, Bay Area IP offers you another way to lower your patent application cost. If you can produce drawings that satisfy the USPTO formal drawing requirements, then we will only charge a minimal review and processing fee instead of the normal per page formal drawing fee. However, if the drawings you submit are not in condition for submission as formal drawings to the USPTO, we will charge an hourly fee to correct the defects. The USPTO formal drawing requirements are strait forward and we can fix most simple defects quickly, usually at an overall savings to you. However, in no case will the cost for us to fix your defective drawing exceed our standard per page formal drawing fee.

Utility Patent Cost Estimate

To a significant degree, the quality and cost of a patent application is under your control. The equation is simple, the more detailed and organized your invention disclosure is, the more efficiently we can prepare an accurate and comprehensive application. To the extent your technical writing skills bring your invention disclosure close to acceptable patent language and substance, we can spend less time drafting the final application. Bay Area IP can provide you with a written price estimate for the services you will need.

Bay Area IP will provide you with and estimated cost quote for the services we believe you will need based on your detailed invention disclosure. The estimate given is valid as long as the initial assumptions have not changed. It should be noted that you can deduct the time we spend preparing your provisional application from the time estimate given to draft the corresponding Utility application.

If your case does not qualify for our flat-fee offer, we will quote you an estimate based the industry standard hourly billing approach. Ninety percent of the time, our clients will observe a cost at or below the estimated cost provided. Although the cost of each case is determined individually, based on experience, our cost estimates tend to fall into a few general cost/complexity categories as follows.

Utility Patent Applications

Ø	Very Simple
Ø	Simple
Ø	Low
Ø	Average
Ø	High
Ø	Extremely High

Unlike some firms, we do not play marketing games in our pricing strategy. Some firms charge extremely low fees to draft/file the patent application, but pad their prosecution bills to recover there discounting and make above market profits. Instead, Bay Area IP keeps its overhead low so we can pass these savings on to you in the form of below market total cost, while providing you top quality service and work product. Other firms play a sort of ‘bait-and-switch’ tactic where they advertise their “simplest case”, or “minimum fee”, estimate, and charge you substantially higher fees as you discover your case was not simple enough to qualify. In contrast, Bay Area IP shows you a detailed breakout of typical or flat-fee costs for many levels of complexity, thereby giving you significantly more predictability of what your true cost will be, even before you ever contact us.

The cost to procure and maintain an awarded patent comprises the following general expenses:

Patent application preparation, drawings (usually 2-4), and filing
USPTO Patent Prosecution (usually 1-2 office actions, the first typically occurs between 9 and 18 months after filing)
Patent Issuance
Periodic Maintenance fees

You should always get a written cost estimate from the patent firm you are considering. If they will not give you one, then you likely cannot afford there services. We provide inventors with a written, good faith price-estimate quotation several pages long that lists the costs of (a) preparing and filing a (non-)provisional application, (b) preparing responses to up to two Office Actions (rejections) on the Merits, and (c) issue fee costs. This quote can give you an overall idea of the total costs involved, and how they are spread over time.

Utility Patent Prosecution

About 14 months after filing your patent application, the USPTO examiner will usually issue a preliminary patentability conclusion (usually a rejection) referred to as an office action. Thereafter, during what is call prosecution, your patent practitioner will prepare a response, often referred to as an amendment, to the office action. The time required to prepare the amendment largely depends on the complexity of the subject matter and the strength of the examiners rejection. Most of the time, during patent prosecution, our preparation and filing of an office action responses cost between $300-1000. We forwarded official actions to the client upon receipt, and include any comments for the client’s consideration and provide an estimated cost to prepare the response. The client then pays Bay Area IP a retainer in the estimated amount, within sufficient time (no less than 30 days) before the response is due.

If the patent application matures to issuance, we mail the client a notice and the issue fee that is due. The client must pay the issue fee within three months from the notice of allowance; otherwise, the application must be revived at great cost.

After issuance, maintenance fees become due at 3.5 years, 7.5 years, and 11.5 years after the issuance date. The firm charges the client a service fee at each renewal for notifying the client, paying the fee when received, and confirming payment.

Typical Flat-fee Patenting Budgets (including drawings, filing, and issuance USPTO fees)^†:

Very Simple patent applications through issuance- about 2 years at $3000
Simple patent applications through issuance- about 2 years at $3,600
Average patent applications through issuance- about 2-3 years at $5,500
Extremely complex patent applications through issuance- about 3-4 years - $8,500

^†Actual costs incurred principally depend on two aspects of the patent examination process:

The technology complexity of the invention; and
Examiner rejection veracity. NOTE: Most patent applications are rejected at first; thus, applicants tend to incur additional legal cost for amendments responding to examiner office actions.

Bay Area IP can meet with you in-person within the San Francisco Bay Area region, or otherwise remotely (inter)nationally. Of course, in-person disclosure meetings are often preferred when practical; however, nearly all cases are suitable for remote clients who can communicate via the Internet, mail, and telephone. An exception might be, for example, the very rare case where to understand the invention it is critical to view a cumbersome prototype that cannot be shipped; that is, where pictures and schematics of the invention are inadequate. For all other cases, when working with a remote client it is generally sufficient to have in advance common detailed, numbered diagrams, a detailed description, and/or photos of the invention prior to the telephone and/or Internet disclosure meeting.

For information on how to get started and to learn about our free initial consultation offer go to our get started page web page.

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