Reducing Cost Creep

by Downs Rachlin Martin PLLC

You’ve prepared well, made yourself available, and as a result, your application appears to be going well.  But, the other day, while you were pushing little Johnny around on his trike and wishing your lawn would just mow itself, you had an idea—an improvement on your original concept—your toilet breathing apparatus should have a face attachment like a scuba mask! That just has to be in the application, right?

Cost creep

Inventors are, by definition, creative people and are likely to continuouslyPatent application, cost, invention develop new and alternative inventions related to their initial invention.  Knowing this, patent attorneys recognize that the inventive process is more akin to a continuum than a discrete act and don’t naïvely believe that when an inventor steps through the door, he has a completed and final version of his inventive concept.  However, if the inventor continues to invent as the patent is being drafted, costs will increase.  This occurs more often than an inventor might expect—questions posed by the patent attorney and a clear and organized patent application often expose possible alternatives.

If a new idea comes to you after work has begun on your application, bring it to the patent attorneys’ attention as soon as possible.  Together, you will be able to assess if and how the new idea will be integrated. The earlier this happens, the less costly it will be.

The costs of patenting– keeping perspective

The costs of obtaining a patent can be substantial despite significant help from the inventor.  A final way to control the Patent, invention, cost, applicationcosts of a patent application is to keep perspective as to your goals, what you think having a patent will do for you, and the long-term costs associated with obtaining, enforcing and defending a patent.

In many cases, it is not the cost of obtaining the patent that determines whether to proceed or not, it is the ability to profit (tangibly or intangibly) over and above the cost of patenting the invention (with the acknowledgement that you might be able to profit without the patent entirely), that is the key consideration.

It’s important for you to know exactly what your patent claims cover.  Recently, as we went through the patent process, an inventor realized that the claims we were likely entitled to, in view of the prior art, would not serve the purposes he desired.  He decided that the invention was no longer worth pursuing—a difficult choice, but likely a sound business decision.

Beyond the initial application

During the prosecution phase of the patent (which, incidentally, is usually three years or longer), the USPTO may reject some or all of the claims, thus requiring a response, which may lead to further rejections and more responses.  If/when the patent is allowed, there are more fees to pay to the USPTO including an allowance fee and maintenance fees that are due periodically during the life of the patent.  However, the costs of patenting are just the beginning for a new invention. (Keep in mind that the fees for obtaining and maintaining patents can grow quite quickly when filing in additional jurisdictions, i.e., Europe, Japan, Canada, etc.)

There will, for most inventions, be significant costs related to prototyping or pilot production runs, legal costs associated with venture capital, non-disclosure, licensing and other contractual agreements, as well as other special fees such as certifications, federal approval, and others.

With patent issuance comes the right (and at times necessity) to enforce your patent rights, which may result in an amicable business relationship, but may also result in litigation or a possible reexamination of the patent.  In short, in most cases it is expensive to bring an inventive idea to the marketplace, and the patent costs are typically a minimal part of those costs.

Discouraged? Don’t be. A carefully thought through plan, and when needed, advice from your patent attorney/agent, will help make your idea and your business a success.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Downs Rachlin Martin PLLC | Attorney Advertising

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