October 14, 2026
For most software startups, a patent is not worth it early on: it typically costs $10,000 to $30,000 to obtain, takes two to three years, may be rejected as an abstract idea, and rarely stops a well-funded competitor. Patents are worth it when the invention is hard to design around (hardware, biotech, new technical methods), when investors in your sector expect them, or when you plan to license the technology. If you’re unsure, a provisional application buys you 12 months of “patent pending” for a modest cost while you find out.
Key takeaways
A utility patent requires an invention that is new (not already public anywhere in the world), non-obvious to someone skilled in the field, useful, and described clearly enough that others could make and use it. It also has to be the kind of thing patent law covers: a process, machine, manufactured article or composition of matter, or an improvement to one. Design patents protect the ornamental appearance of a product, such as the shape of a device, and last 15 years from grant. Plant patents exist but rarely matter to startups.
Timing matters as much as the invention. In the US, if you disclose the invention yourself (a launch, a demo, a pitch to people not under an NDA, a published paper), you have one year to file. Most other countries require absolute novelty, meaning any public disclosure before filing can destroy your rights there. If you might want patents outside the US, file before you go public. So if you launched six months ago, you can likely still file in the US, but foreign rights may already be gone.
Sometimes. Under the Supreme Court’s 2014 decision in Alice v. CLS Bank, claims directed to an abstract idea, such as a business method, a mathematical formula or organizing information, are not patentable unless they add something significantly more. Simply running an idea on a computer doesn’t count. Many software claims are rejected on this ground, and claims that survive at the Patent Office can still be invalidated in court.
Software claims do better when they describe a concrete technical improvement: making the computer itself work faster or more securely, a new way of processing signals or data with a measurable technical result, or a specific technical solution to a technical problem. The Patent Office has recently signaled a friendlier approach to AI and software claims, but the courts still apply Alice. A patent attorney can tell you early whether your invention is likely to clear this hurdle, which is the first question to answer before spending money.
A provisional application establishes a filing date for your invention without formal claims and without examination. It lasts 12 months and cannot be extended. To keep the filing date, you must file a nonprovisional application (or an international application) within that year that claims priority to it. During the 12 months you can say “patent pending.”
A provisional is only as good as its description. The later application gets the earlier date only for what the provisional actually disclosed, so a thin provisional written in an afternoon may protect very little. The 20-year patent term runs from the nonprovisional filing date, so a provisional effectively adds a year to the end of your protection.
Example: A hardware startup files a detailed provisional before demoing at a pre-seed pitch event. Over the next year it raises a seed round and learns which features customers care about, then files a nonprovisional and an international application claiming the provisional’s date, focused on the features that turned out to matter.
Patent Office fees depend on your entity size. Small entities (generally fewer than 500 employees, including affiliates) get a 60% discount. Micro entities (small entities that also meet income limits and have filed few prior applications) get 80%. Fees as of October 2026:
| USPTO fee | Large entity | Small entity | Micro entity |
|---|---|---|---|
| Provisional application | $325 | $130 | $65 |
| Nonprovisional filing, search and examination | $2,000 | $800 | $400 |
| Prioritized examination (Track One) | $4,515 | $1,806 | $903 |
| Issue fee (when allowed) | $1,290 | $516 | $258 |
Maintenance fees are also due 3.5, 7.5 and 11.5 years after the patent issues, and they increase each time. Extra fees apply for large applications and many claims.
Legal fees are the larger cost. As a rough guide, a well-drafted provisional typically costs $2,000 to $5,000 in attorney time, a nonprovisional $8,000 to $15,000 or more, and each response to an examiner’s rejection (an “office action”) $1,500 to $4,000. Most applications receive at least one or two. A US patent on a software or hardware invention often ends up costing $10,000 to $30,000 in total, and international protection multiplies that.
Expect two to three years from filing a nonprovisional to a granted patent, and often close to two years before the examiner’s first response. Office actions and responses add months each. If speed matters, Track One prioritized examination aims for a final decision within about 12 months, for the added fee above.
The inventors do, until they assign it in writing. A patent belongs to the individuals who conceived the invention. The company owns it only if each inventor signs an assignment. That is one reason every founder, employee and contractor should sign a CIIAA or equivalent. When you file, have each inventor sign an assignment of the specific application and record it with the Patent Office.
Two common problems. First, naming the company as the applicant on a filing does not by itself transfer ownership; the assignment still has to be signed. Second, when a company converts from an LLC to a corporation, or moves IP into a new entity, record a second assignment into the new entity, and don’t dissolve the old entity until that assignment is signed and recorded. See Who Owns Startup IP?
AI tools add a new wrinkle. Only people can be inventors. Patent Office guidance from November 2025 treats AI as a tool, like lab equipment, and asks whether a human conceived the claimed invention. If your team uses AI in research and development, keep records showing what the people contributed. This is a new area of law that is likely to shift.
When the examiner allows your application, you’ll receive a notice of allowance and have three months to pay the issue fee. That deadline cannot be extended. If you want to pursue additional claims, for example to cover a competitor’s product or a new feature, file a continuation application before the patent issues.
Patents are national. To protect the invention abroad, you must file within 12 months of your earliest filing date (usually the provisional). Many startups file one international application under the Patent Cooperation Treaty (PCT) at the 12-month mark, which delays the decision about which countries to enter, and the cost of filing in each, to 30 months from the earliest filing date in most countries. When you do choose, focus on the countries where you will sell, where the product is made, where competitors manufacture, and where likely acquirers or licensees are based. A patent in a country where none of that happens rarely justifies the cost.
Ask four questions. Can competitors see how your product works, and would they copy it? If the valuable part lives on your servers, a trade secret may protect it better without disclosing it. Do investors in your sector expect patents? In biotech, medical devices, hardware and deep tech they usually do; in most software they don’t. Would you actually enforce it? Patent litigation costs millions, so a patent’s value often lies in deterrence, licensing or acquisition value rather than lawsuits. And is this the best use of the money right now, compared with building the product and getting customers?
For most software startups, execution, speed and customer relationships protect the business better than an early patent. For startups whose core value is a technical invention, a patent can be one of the most valuable assets the company owns.
Keep one limit in mind either way. A patent lets you stop others, but it doesn’t clear you to sell your own product, which may still fall within someone else’s patent. If you’re entering a crowded field, ask patent counsel whether a freedom-to-operate review makes sense before launch.
Westaway doesn’t prosecute patents, but we work with patent counsel on ownership, assignments and strategy. For more, see How Do I Protect My Startup Idea?, Trademark vs Copyright vs Patent and My Startup Has Limited Resources. How Should I Prioritize Protecting IP? If you’d like help deciding whether to patent, contact us.
