The primary role of a patent lawyer is to assist their clients with the difficult and time-consuming process of obtaining a valid patent.
That, of course, costs money – but, how much money?
Enough that it can be a shock to anyone not familiar with typical rates and fees.
This article will examine the high cost of hiring a patent lawyer, factors affecting the cost, and other fees an inventor should be aware of. Statistics and data in this article primarily come from the American Intellectual Property Law Association’s (AIPLA) Report of the Economic Survey 2021.
It should be noted that in addition to providing legal consulting and assisting with the patent process (or part of the process), patent lawyers also represent clients in patent related litigation, negotiation, and licensing.
» Learn More: What Do Patent Lawyers Do?
Average Cost of a Patent Lawyer
The average cost of a patent lawyer varies based on many factors and generally falls in the range of $250 – $650 per hour.
An applicant for a patent should expect to pay between $5,000 – $15,000 in attorney fees.
It is highly recommended to use the services of a patent lawyer when applying for a patent. A patent attorney is registered with the United States Patent Office (USPTO) and has proven their competency in and knowledge of the patent system. Using the services of a patent attorney yields a much more comprehensive application that offers stronger protection for an invention.
How Patent Attorney Fees Are Structured
Patent lawyers typically charge an hourly rate or a flat predetermined fee for their services. In some circumstances, a patent attorney may work on a contingency fee basis, or in exchange for an interest in the patent. Attorneys may provide the option to select the fee that works best for their client.
The AIPLA economic survey reports the percent of services billed by type as:
- Hourly billing: 64.2%
- Predetermined Fee: 33.6%
- Contingent Fee: 1.8%
- Other Basis: .3%
The AIPLA economic survey indicates that the costs for services are relatively the same regardless of if the fee is based on hourly billing or predetermined fees.
Hourly Rates for Patent Attorneys
The typical cost per hour of a patent lawyer is between $250 – $650 with a median in the range of $350 – $500.
Traditionally, attorneys in most fields of law charge their clients an hourly rate for the attorney’s time. Rules governing lawyers require strict timekeeping obligations so a client should trust they are only paying for time spent on their case.
The big drawback of paying an attorney at an hourly rate is not knowing at the outset how much it will cost in the end. Another possible drawback is that a client may be tempted to request the attorney to rush the work in hopes of paying a lower fee. Less time spent on a patent application or case may lead to a lower quality of patent protection.
Flat Rate Fees for Patent Attorneys
Flat rate fees are set and predetermined fees that stay the same regardless of how much time an attorney takes. Flat rate fees are more commonly used for routine transactional tasks that a patent lawyer performs. This includes paying maintenance fees, filing a prepared application, or entering a PCT application into the national stage.
The big pro of having a flat rate fee is knowing exactly what you will pay upfront. A drawback is that you might be paying more than if the attorney just billed hourly for the same amount of work.
Contingency Fees for Patent Attorneys
In a contingency fee arrangement, the client is only obligated to pay if the attorney wins the case.
Contingency fees are not common in patent law. Patent prosecution and litigation cases take a very long time, and the outcomes are uncertain. A patent attorney working on a contingency basis would take on significant risk of being paid years later or not being paid at all.
Interest in Patent Rights as a Fee for Patent Attorneys
While this arrangement is not prohibited, exchanging an interest in patent rights or equity in a company that owns that patent is not best practice for patent attorneys.
Attorneys are not allowed to charge “unreasonable fees.” As an example, the interest that the attorney gains in a patent turns out to be worth five million dollars. Charging five million for drafting, filing, and prosecuting a patent application is unreasonable. The client could sue the attorney for charging unreasonable fees and possibly recover the whole interest in the patent.
Alternatively, if the invention protected by the patent fails to be economically viable, the attorney will have nothing to show for the time spent on the client.
Factors Affecting How Much a Patent Lawyer Costs
There are many factors that influence the variation in pricing among patent attorneys. Some of those factors include:
- Size of firm (large, medium, small, solo practice)
- Reputation of the firm
- Status of attorney (associate/ partner / of counsel)
- Years of experience
- Geographical location of the attorney
- Technology field of invention
- Complexity of the invention
Although not universal, the following generalities should be considered.
Rates at large practices are higher than those at smaller practices. A partner at a firm charges more than an associate. The AIPLA survey suggests a slight positive correlation between fees and years of experience. Attorneys located in areas with high costs of living will charge more than those located in areas with low costs of living.
Additionally, the technological field and complexity of the invention affects the amount of time an attorney will spend on the application. The AIPLA survey indicates the median charge for an original application of minimal complexity is $7,500 while a relatively complex invention is $10,000.
Additional Legal Costs Related to Patents
Attorney’s fees are typically the highest expense associated with the cost of obtaining a patent. Other expenses primarily come from fees charged by United States Patent and Trademark Office (USPTO).
USPTO fees are subject to change and are listed on the fee schedule page. USPTO fees may be reduced if the applicant qualifies as a small or micro entity including independent inventors, small businesses, and non-profit organizations.
Utility patent applications have higher fees than design or plant applications. Fees that an applicant for a patent should be prepared to pay include the following.
- Basic filing fee – for filing a patent application ($44-$320)
- Patent search fee – for the USPTO to search for prior art ($32-$700)
- Examination fee – for the USPTO to examine the application ($128-$800)
- Issue fee – for an approved application to issue as a patent ($148-$1,200)
- Maintenance fees – required to keep the patent enforceable. Increases over time and due at 3.5, 7.5, and 11.5 years after issue date ($400-$7,700).
- Other fees – notice of appeal, extension of time, certificate of correction, reexamination, petition, recording assignment.
The basic filing fee, patent search fee, and examination fee should be paid when the patent application is submitted.
Sheldon received his training of the patent system at the United States Patent & Trademark Office. He works with universities and consultants to provide analytics and guidance for technology commercialization from patents.
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- American Intellectual Property Law Association. (2021, September) Report of the Economic Survey 2021. Retrieved from https://www.aipla.org/detail/journal-issue/2021-report-of-the-economic-survey
- N.A. (2023, June 30) USPTO fee schedule. Retrieved from https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule
- Anton Hopen. (2020, January 12) Patent Cases on Contingency Do Not Work. Retrieved from https://smithhopen.com/ufaqs/patent-cases-on-contingency-do-not-work
- Michael O’Brien (2018, May 22) Why Patent Attorneys Can’t Work for Equity. Retrieved from https://www.obrienpatents.com/why-patent-attorneys-cant-work-for-equity/