USPTO CAF Fees in 2025: Are You Ready?

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On January 19, 2025, the United States Patent and Trademark Office (USPTO) implemented a significant change to its fee structure by introducing the Continuing Application Fee (CAF). This new fee will impact patent prosecution strategies for many applicants, particularly those relying on continuing applications filed years after their earliest priority date.

What is the Continuing Application Fee?

The CAF is a new fee (37 CFR 1.17(w)) that applies to utility, plant, and design continuing applications (continuations, divisionals, and continuation-in-part applications) with an actual filing date more than six years after their Earliest Benefit Date (EBD).

The fee structure is tiered:

  • Applications filed more than 6 years but not more than 9 years after their EBD: $2,700 (§1.17(w)(1))
  • Applications filed more than 9 years after their EBD: $4,000 (§1.17(w)(2))

Key Concepts to Understand

Earliest Benefit Date (EBD)

The EBD is the earliest filing date for which a benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c). Important notes:

  • EBD is determined on an application-by-application basis
  • Foreign priority applications (35 U.S.C. 119(a)) do NOT count toward determining the EBD
  • Provisional applications (35 U.S.C. 119(e)) do NOT count toward determining the EBD
  • For reissue applications, the EBD is based on the earliest filing date claimed in the original patent

When is the CAF Due?

 Applications filed on or after January 19, 2025

Payment is required when presenting a benefit claim that makes the EBD more than six years earlier than the filing date.

  • If the claim is presented at filing, the fee is due at filing
  • If the claim is presented later, the fee is due concurrently with presenting the claim

Applications Filed Before January 19, 2025

Even applications filed before the effective date may be subject to the CAF if:

  • A new benefit claim is presented on or after January 19, 2025, AND
  • The application’s filing date is more than six years after its EBD

The CAF is required in this case, even if the newly presented benefit claim doesn’t change the application’s EBD.

Important Scenarios and Considerations

Multiple Benefit Claims

  • The CAF is based on the application’s EBD, not the number of benefit claims
  • Presenting multiple claims at the same time incurs only one fee
  • If benefit claims are presented at different times and change the EBD to more than 9 years, the additional amount owed is the difference between the §1.17(w)(2) fee and any previously paid §1.17(w)(1) fee

Non-Payment Consequences

If the CAF is not paid when due, the USPTO will not enter the benefit claim. This is the same consequence as for other deficiencies under §1.78(d). Applicants should verify that benefit claims have been entered by checking the application’s Filing Receipt.

Reissue Applications

  • Non-continuing reissue applications: The USPTO has waived the CAF for benefit claims that were properly presented and entered in the original patent
  • Continuing reissue applications: Likely to incur a CAF due to the presentation of the benefit claim to the parent reissue application

Certificate of Correction

When adding a benefit claim to a patent via a certificate of correction, the CAF is required if the application was issued as a patent had a filing date more than six years after its EBD.

Planning Tips for Patent Applicants

  1. Review your pending applications: Identify applications with filing dates approaching six years from their earliest benefit date
  2. Consider timing: If the 6-year or 9-year anniversary falls on a weekend or federal holiday, you can file on the next business day without incurring the higher fee
  3. Check filing receipts: Always verify that benefit claims have been entered correctly
  4. Calculate fees carefully: When presenting multiple benefit claims or adding claims after initial filing, ensure you’ve calculated the correct fee amount

Conclusion

The new Continuing Application Fee represents a significant change to the USPTO fee structure that will affect prosecution strategies. By understanding when and how this fee applies, patent applicants can make informed decisions about their continuing application strategies while minimizing unnecessary costs.

About NK Patent Law

NK Patent Law is an intellectual property boutique serving clients throughout the United States and abroad.  We focus on patent preparation and prosecution, trademark preparation and prosecution, and general IP counseling to help businesses navigate complex IP issues and potential disputes. We help startups, established companies, and universities protect their intellectual property and navigate the competitive landscape to protect their valuable intellectual property assets. Visit us at www.nkpatentlaw.com to learn more.