Patent Filers May Suffer Sticker Shock Next Year as USPTO Hikes Patent Fees

USPTO Recently Issued Final Rule Raising Certain Patent Fees

The U.S. Patent and Trademark Office (USPTO) recently issued a final rule raising certain patent fees. While many filers may have sticker shock, there is an upside — The additional fee collections should help the agency reduce its backlog, decrease wait times, and make needed technology improvements.

The American Invents Act (AIA) authorizes the USPTO to set or adjust all patent and trademark fees established, authorized, or charged under Title 35 of the U.S. Code and the Trademark Act of 1946. When fees are set, the aggregate revenue from the patent fees may be used to recover the aggregate estimated cost of patent operations, including administrative costs to the USPTO. 

The USPTO last adjusted its fees under the AIA in 2013. The latest changes become effective on January 16, 2018.

USPTO’s Final Changes to Patent Fees

The USPTO published a table summarizing all of the new or adjusted fees. Below are several notable changes:

• Inter Parte Review: Inter Parte review and post-registration fees are going up from $21,000 to $30,500 (a 33% increase).
• Utility Patents: The filing fee will increase 7% from $280 to $300; the search fee will increase 10% from $600 to $660; the examination fee will increase 6% from $720 to $760; and the issue fee will increase 4% from $960 to $1,000.
• Provisional Patents: The application filing fee will increase 8% from $260 to $280.
• Design Patents: The filing fee will increase 11% from $180 to $200; the search fee will increase 33% from $120 to $160; the examination fee will increase 30% from $460 to $600; and the issue fee will increase 25% from $560 to $700.
• Excess Claim Fees: The cost to file each independent claim in excess of three will increase 10% from $420 to $460, while the cost of each claim in excess of 20 will increase 25% from $80 to $100. Multiple dependent claims will increase 5% from $780 to $820.

Patent Filing Discounts for Start-Ups and Other Small Businesses

The USPTO does provide discounted patent fees for start-ups and other small businesses. In most cases, small entities pay 50% of the standard fee, while micro-entities pay 25%. Maintenance fees are similarly reduced for small businesses.

To qualify for discounted patent fees, small entities must meet the definition of “small business concern” under § 3 of the Small Business Act (most significantly that they must not have more than 500 employees).

To qualify as a micro entity, an applicant must meet all of the following criteria:

• Qualify as a USPTO-defined small entity;
• Not be named on more than four previously filed applications; and
• Not have a gross income more than three times the median household income in the previous year from when the fee(s) is paid (currently $155,817).

There are other strategies available to reduce the cost of pursuing patents. To determine the best course of action for your business, it is essential to work with an experienced intellectual property attorney.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, David Einhorn, at 201-806-3364.