Fees/Entity Size

Home » Resources » Patent Filing » Fees/Entity Size

Fees/Entity Size

Nothing in life is free, especially when preparing and prosecuting patent applications.  As such, the majority of documents filed with the USPTO require some type of fee.  The most common method of paying the USPTO fees is via credit card or deposit account.  The USPTO Credit Card Payment Form (PTO-2038) must be used when paying a patent process fee, unless the payment is being made using EFS-Web.  To emphasize, this credit card payment form is not required (and should not be used) when making a credit card payment via EFS-Web.[1]See, e.g., MPEP § 509(II).

Providing a general authorization to charge all fees, or only certain fees, to a deposit account containing sufficient funds is a convenient and straightforward way to pay the requisite fees.  This general authorization may be written at the end of a paper to be filed with the USPTO, and state: “The Commissioner is hereby authorized to charge any fees under 37 C.F.R. 1.16 and 1.17 due in connection with the filing of this paper to Deposit Account No. XXXXX.”  It is extremely important that the authorization be clear and unambiguous to avoid the return of fees.  An authorization to charge the issue fee to a deposit account may only be made after the mailing of the notice of allowance.[2]See, e.g., MPEP § 509.01(I).  

The payment of certain fees depends on an applicant’s entity statutes.  For those who qualify as a small entity, the following fees will be reduced by 50%:

application filing fee, application search fee, application examination fee, application size fee, and excess claims fees, extension of time fee, revival fee, and appeal fees, patent issue fees, and maintenance fees, certain petition fees, request for reexamination fees, fee for submitting an information disclosure statement in certain time frames, the surcharge for reinstating an expired patent, fee for an unintentionally delayed claim for priority, PCT international transmittal fee, PCT international search fee, and the PCT international preliminary examination fee.[3]See, e.g., MPEP § 509.02.

The definition of small entities is provided in 37 C.F.R. 1.27, which you are encouraged to review.

Small entity status may be established in two ways, the first of which is via written assertion.  A written assertion of small entity status must: (1) be clearly identifiable; (2) be signed; and (3) convey that applicant is entitled to small entity status, such as by stating that applicant is a small entity, or that small entity status is entitled to be asserted for the application.  Parties who can sign and file this written assertion include: (1) the applicant; (2) the patent practitioner of record or a patent practitioner acting in a representative capacity (e.g., for an inventor who is deceased or under legal incapacity); (3) the inventor or joint inventor if the inventor is the applicant; or (4) the assignee.[4]See, e.g., MPEP § 509.03(I).   

The second way that small entity status may be established is via payment of the small entity basic filing fee, basic transmittal fee, basic national fee, or international search fee.  Accordingly, filing a patent application and paying an exact small entity basic filing or basic national fee automatically establishes small entity status for the application even without any other assertion of small entity status.[5]See, e.g., MPEP § 509.01(IV).   

However, regardless of how small entity status is established, assertion of such status must be made in each related, continuing and reissue application in which the status is appropriate or desired.  For instance, status as a small entity in one application or patent does not affect the status of any other application or patent, regardless of the relationship of the applications or patents.

Certain patent fees may be further reduced if the applicant qualifies for micro entity status.  In particular, the following fees may be reduced by 75% for micro entities:

non provisional and provisional filing fees, search fees, examination fees, issue fees, appeal fees for utility patent applications, appeal fees for design application, appeal fees for plant application, appeal fees for reissue application, patent maintenance fees, maintenance fee grace period surcharges, the surcharge for a petition to accept a delayed maintenance fee payment in order to reinstate an expired patent, excess claims fees, application size fees, the surcharge if either the basic filing fee or the oath or declaration for a nonprovisional application was not present on the filing date, fees for requesting prioritized examination, fee for requesting supplemental examination, notice of appeal filing fee, fee for forwarding an appeal to the Patent Trial and Appeal Board (PTAB), and fee for requesting an oral hearing.[6]See, e.g., MPEP § 509.04.  

The definition of micro entities is proved in 35 U.S.C. § 123, which you are also encouraged to review.

A certification is required for an applicant to be considered a micro entity.  This certification must be in writing and must be filed prior to, or at the time, a fee is first paid in the micro entity amount in an application or patent.  Moreover, status as a micro entity in one application or patent does not affect the status of any other application or patent; thus, assertion of micro entity status must be made in each related, continuing and reissue application in which the status is appropriate or desired.


1 See, e.g., MPEP § 509(II).
2 See, e.g., MPEP § 509.01(I).
3 See, e.g., MPEP § 509.02.
4 See, e.g., MPEP § 509.03(I).
5 See, e.g., MPEP § 509.01(IV).
6 See, e.g., MPEP § 509.04.