How to apply for a patent and how much it costs

​Before starting the patent application process, you should consider whether you should apply for a patent.

The cost to obtain a patent is usually one of the first questions you would ask when thinking about getting a patent.

Without knowing the details of your invention, it is very difficult, if not impossible, to provide a reliable estimate with respect to the costs. However, simply telling you that it is difficult to estimate obviously will not help you make an informed decision. Here, we are trying to provide you with a rough idea of the cost range to expect with respect to applying for a patent for your invention in Canada.

Obviously, we cannot speak on behalf of other professionals. As such, the following are based on my experience.

In general, the cost for applying for a patent in Canada for an average invention is usually between $10,000-15,000 from the beginning to the patent is granted or rejected by an Examiner of the Canadian Intellectual Property Office (CIPO). Applying for patent in the United States for the same invention could cost between $10,000 – 20,000. Applying for patent in other jurisdictions will incur the government fees and the cost of paying for local patent agents there.

The cost for applying for a patent is associated with different stages of the patent application process, which generally includes preparing a patent application, responding to Examiner’s Report, and paying the final fee, etc. This means that the cost for applying for a patent is spread out throughout the process, which may be beneficial to you. Usually about a half of the total cost is incurred in preparing the patent application.

In the following, we discuss the costs associated with the major stages of the patent application process. We also discuss certain ways to reduce the cost and how long the process generally takes.

If you have any questions about the cost and process, please contact us for a confidential consultation.

The Typical Patent Application Process and Associated Costs

A patentability search, which is usually limited to a search in the USPTO and/or CIPO patent database, and the opinion based on the patentability search may also help you improve your invention and make drafting patent application more effective.

Your invention is then analyzed in view of the patents and patent applications found. We will then provide you with a patentability opinion. Based on your needs and budget, we can provide you a list of patents and patent applications for you to review by yourself or we can provide you with a patentability analysis.

Please note that, it is impossible for the patentability opinion to be bulletproof and you should not base your decision solely on the patentability opinion. For example, if an invention is particularly important to your business, you may want to fight for it in any case.

Initially, we will discuss with you so that we can understand your invention. Based on our understanding of your invention as approved by you, we will search for patents and patent applications that are related your invention as we understand it. Of course, you can do the search by yourself, for example, on google patents.

This service usually costs about $1,100-1,500, including search and analysis by us. However, very complex inventions such as the inventions related to software and business methods my cost up to $2,500.

2. Preparing a patent application

With or without a patentability opinion, you must have a patent application prepared for filing if you decide to proceed further. Usually, a patent application includes a lot of text, multiple drawings, and a number of claims. The patent application is usually difficult for someone who is not vested in the intricacies of the patent practice to understand. As such, drafting patent application is usually done by a patent agent because the drafter must take into account the various requirements for a patent to be granted and the needs of the inventor.

The cost for preparing a patent application depends on many factors, which primarily include the following:

a. The complexity of the invention.

In determining the cost, the most important factor is the complexity of the invention. Most inventions by individual inventors range from relatively simple to moderately complex. For example, a mechanical device such as shirt hanger will likely be very simple, a sophisticated electronic device will likely be relatively complex, whereas a business method or software-related invention will likely be very complex.

Usually, the more complicated the invention is, the more it costs to prepare the patent application. For example, it may require more detailed description so that persons skilled in the art will be able to practice the invention. From our experience, clear and detailed disclosure of the invention from the inventor can usually help reducing the cost.

b. Technical field of the invention.

One of the other factors that affect the costs is the technical field the invention is in. For example, in a new technical field such as cryptocurrency, the patent application may require more detailed disclosure and fuller explanations, resulting in higher costs. In contrast, an application for an invention in a well-established field such as mechanical tools will likely require less disclosure and explanation.

c. The requirements of the inventor or applicant.

Another factor is the desire of the inventor. For example, if the inventor wants to have the broadest possible patent protection for the invention, it will make drafting the patent application more difficult, resulting in higher costs. On the other hand, if the inventor chooses to focus on the point of invention, the cost to draft an application would be lower. In this process, if the inventor has a clear idea of the invention and how it works, it would be easier to draft the application, thus reducing the cost.

Below, we discuss the the typical cost ranges for drafting a patent application with respect to inventions of different complexity levels. These examples are only meant to illustrate the complexity of the inventions, and in no way suggest that they can actually be patented.

1. Very simple inventions, such as mechanical devices with no moving parts, will cost about $1,500 to $3,000 to prepare a patent application.
2. Inventions of average complexity, such as mechanical devices with limited moving parts and motion, will cost about $2,000 to $4,000 to prepare a patent application.
3. Inventions of moderate complexity, such as mechanical devices with complex internal mechanism and motion, will cost about $3,000 to $5,000 to prepare a patent application.
4. Inventions of high complexity, such as inventions related to business methods, software, automated systems, telecommunication networking systems, and pharmaceutical and chemical inventions, will cost about $4,000 to $8,000 to prepare a patent application.

While the inventors can provide the drawings themselves, a professional drafter can be hired to make the drawings, which will usually cost about $300-$500.

Some patent practitioners would recommend reducing cost by drafting a brief patent application for filing as a provisional application for patent in the United States.

We believe a provisional application for patent could be beneficial in certain situations. However, reducing cost by drafting a brief patent application should not be the purpose of using the provisional application for patent.

We believe that the provisional application for patent in the United States could be advantageous when you need to quickly secure a filing date, for example, because you are going to show your invention to the public on a short notice. This practice could also be advantageous when your invention is not fully developed and you want to secure an early first filing date.

However, if your invention is fully developed, and you are not in a hurry to get a filing date, then you should consider having the patent application fully drafted with appropriate claims because there is a risk that the benefit of the filing date of the provisional application for patent may be denied when your subsequent nonprovisional application for patent is examined for patentability if the provisional application for patent does not include all the necessary information.

The cost for drafting an application for filing in Canada is generally the same as the cost for drafting an application for filing in the United States.

3. Filing the patent application

After the patent application is drafted and approved by you, we will file the patent application to the patent office of your choice. The patent offices invariably charge a filing fee for the patent application. There are also services fee for us to prepare the necessary documents for filing. Although usually not necessary at this stage, if the patent application is to be filed in the name of an applicant who is not the inventor, you should consider having the inventor sign an assignment to the applicant to establish the right of the applicant. 

We will discuss with you about your business needs before preparing the patent application so that you can make an informed decision regarding where to file the patent application initially. For example, you may want file a patent application in Canada if your business is focused in Canada and you have no plan to expand to foreign jurisdictions. Or you may want to file a provisional application for patent in the United States because your invention is not yet fully developed or you want to reduce the upfront cost. If your invention is fully developed and you want to obtain patent rights in multiple jurisdictions, you may want to file a PCT application initially or based on a patent application in the United States or in Canada. We will take this decision into account when preparing the patent application. 

This stage usually will cost between $1000-1500 in Canada, including the government fees depending on the size of the applicant. The fees will be higher for filing in the United States or filing a PCT application.

4. Examination of the patent application

Before a patent can be issued from a patent application, the patent application must be examined by the patent office. There usually is an examination fee associated with the examination of the patent application that is charged by the patent office. Some patent office requires a request for examination to be filed before the patent office starts examining the patent application. There usually are professional fees associated with requesting examination. In Canada, a patent application will not be examined unless a request and associated fee is submitted within a certain time after the patent application is filed.

The cost for requesting the examination for a patent application is between $600-1000. In Oct., 2022, the Patent Rules was updated to introduce an excess claims fee for each claim in excess of 20 claims. Currently, the excess claims fee is $100 for each claim for standard entities and $50 for each claim for small entities. As you can see, this will add up quickly if there are more than 20 claims in the patent application. Also introduced is the mechanism of Request for Continued Examination (RCE), which requires additional fees to continue the examination of a patent application after a couple of Examiner’s Reports. These changes make the Canadian practice similar to the US practice in these aspects.

When the patent application is being examined, the patent office will usually send communications, which are often called Office Action, Examiner’s Report, Search Report, or Examination Report, indicating why the patent application should not be issued to a patent. For example, the patent office may think that your invention is not new, or is obvious based on prior art. We will then help you to respond to the communications by making arguments and/or amendments to the application. Each response to the Office Action usually costs a few hundred to a few thousand dollars, depending on the number and complexity of the objections in the Office Action. Each response to an Examiner’s Report could cost between $200-2,000 depending on the complexity of the invention and the Examiner’s Report.

5. The Patent Application Is Issued to Patent or Rejected

After several rounds of communications and responses with the patent office, the patent application may be allowed as a patent or the patent office may reject the patent application.

If the patent application is allowed, a final fee or issue fee usually needs to be paid. A letters patent will then be issued by the patent office and forwarded to you. In Canada, paying the final fee usually will cost about $400-600, including the government fees. A few months after paying the fee, a patent certificate will be issued by the patent office.

If your patent application is rejected, you usually will have the opportunity to appeal the decision. However, this will could be an expensive and time-consuming practice.

6. Maintaining the patent application and/or the patent

On top of the other fees, there is also a maintenance fee that is usually required before and after the patent is issued so that the application will not be abandoned and the patent will not lapse. This fee usually increases for later years. If you believe the patent or patent application is of no commercial value to you anymore, you can simply stop paying the maintenance fee and abandon the patent or patent application. In Canada, the annual maintenance fee ranges from $50-459 as of 2021.

7. Additional costs associated with filing the patent application in foreign jurisdictions

If the patent application is filed in a foreign jurisdiction, it may also involve the costs of translating the patent application to the local official language, the professional services fees of the patent professionals, and the government fees in that particular jurisdiction. One particularly expensive jurisdiction is Europe, where the initial filing alone could cost more than $5000.

How to reduce your costs in the patent application process:

As you can see, the patent application process could cost thousands of dollars or more. If you are an aspiring inventor or a small business, the anticipated costs could be daunting. Fortunately, there are ways to reduce your costs.

The most expensive parts could be the preparation of the patent application and the examination of the patent application. For the preparation of the patent application, you could help reduce the cost by clearly explain your invention in detail, thus making it easy for us to understand your invention and prepare the patent application based on the understanding. You could also inform us how the invention relates to your commercial objectives. This could help us responding to the objections from the patent office.

You could also seek funding from other sources. However, this usually involves disclosing your invention to the potential investors, which could damage your chance of getting a patent. Thus, you usually would want to have a non-disclosure agreement (NDA) or the like with the potential inventors or file the patent application before disclosing your invention to the potential investors. To reduce your cost, you could consider filing a provisional application for patent at this stage.

How long does it take to obtain a patent?

As you can imagine from the typical patent application process discussed above, it could take a while before a patent application can be issued as a patent or refused. In some countries, for example, Canada, a patent application is not examined unless examination is requested, which provides you an opportunity to control the pace of the patent application process. Depending on your budget at the moment or other considerations, for example, if you want to keep the scope of protection intentionally vague, you may want to postpone the start of the examination stage of the patent application process. Once examination starts, it usually takes 2-3 years before a patent is issued or rejected. However, depending on the invention, the process can take shorter or longer. In the United States, the process usually takes 9 months to 2 years.