How to file a patent for software: the founder’s guide
What actually happens between “we built something new” and “patent pending”, how long it takes, and what it costs.
Step 1: decide whether it is worth filing
Not every clever feature is patentable, and not every patentable feature is worth the money. The test is business value: does this stop a competitor from copying the thing customers pay you for? A free patentability check gives you signals; a 30 minute call with your attorney gives you the decision.
Step 2: write the invention down
An invention record is the raw material: the problem, how it works step by step, what is new, where it lives in the code, who invented it, and whether it has been disclosed. Patent AI builds this from your repo and a short interview.
Step 3: search the prior art
A prior art search finds what already exists. It shapes the claims and tells you where the room is. Skipping it saves a few hundred dollars and costs years.
Step 4: file a provisional
A provisional is a dated placeholder: 12 months of priority, no claims examined, “patent pending” from day one. Ours are filed within 3 business days of a complete record.
Step 5: file the nonprovisional
Within 12 months of the provisional, the full application with claims, drawings and description goes in. This is what the USPTO examines.
Step 6: prosecution
Expect at least one office action. Software and AI applications face Section 101 (eligibility) and 103 (obviousness) rejections. Responses, examiner interviews and if needed an RCE are how a good attorney earns allowance.
Timeline and cost
Provisional: 2 weeks. Nonprovisional: within 12 months. First office action: 12 to 24 months after filing, faster with Track One. Allowance: 2 to 3 years typical. Our professional fees: $19,500 to $24,500 to first allowance; USPTO fees about $2,070 for a small entity.