Am I qualified as a micro entity? 6 Answers as of February 03, 2014

I'm filing a non-provisional utility patent application. I had no income last year, but my wife makes over $250K. We file tax return jointly. Her income is all from W-2.

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Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
Under the America Invents Act (AIA), you may be entitled to reduced fees as a "micro-entity" if you meet certain requirements. To qualify as a micro-entity, an applicant must meet all four of the following criteria: * Qualify as a USPTO-defined small entity, i.e., less than 500 employees. * Not be named on more than four previously filed applications. The micro-entity definition states that applicants are not considered to be named on a previously filed application if he or she has assigned, or is obligated to assign, ownership rights as a result of previous employment. Applications filed in another country, provisional applications, or international applications for which the basic national fee was not paid do not count as previously filed application. The definition also includes applicants who are employed by an institute of higher education and have assigned, or are obligated to assign, ownership to that institute of higher education. * Not have a gross income more than three times the median household income in the previous year from when the fee(s) is paid. For 2011, the most recent year that data is available, the median income was $50,054. So, if your gross income is less than about $150,162, you should meet the Gross-Income basis threshold. * Not be under an obligation to assign, grant, or convey a license or other ownership to another entity that does not meet the same income requirements as the inventor. So, if you meet all of the above requirements, you are entitled to micro-entity status and its reduced fee schedule. Unfortunately, your gross income (over $250K) exceeds the approximately $150K Gross-Income basis threshold requirement. So, you are probably not entitled to the micro-entity status. As always, you should consult a patent attorney to explore your particular facts and confirm whether or not you meet all of the requirements for micro-entity status.
Answer Applies to: Utah
Replied: 2/3/2014
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
The patent office rule regarding micro-entity as "had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding the Maximum Qualifying Gross Income?" Based upon you filing a joint return you would not qualify as a Micro-Entity with an income of over $250K.
Answer Applies to: California
Replied: 1/31/2014
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
Probably not but the solution is to set up a company to own you IP. You should do this anyway for many reasons. And with due respect, you should not draft and file this patent application on your own. It will be worthless if you do not use counsel (unless lightening strikes). If you think you have a valuable invention, then get a lawyer. Also, have you obtained a patent clearance analysis from IP counsel? Without it, you are drafting in the dark, blind to issues that could ruin your chances to get a patent and commercialize your invention.
Answer Applies to: New York
Replied: 1/31/2014
Webb IP Law Group
Webb IP Law Group | Jason P Webb
Sounds risky.
Answer Applies to: Utah
Replied: 2/3/2014
Banner & Witcoff, Ltd. | Ernie Linek
You likely do not qualify, due to the joint tax filing status.
Answer Applies to: Massachusetts
Replied: 1/31/2014
    Brown & Michaels PC | Michael F. Brown
    Your wife's W2 income should not be attributed to you directly, even if you do file jointly. According to the USPTO FAQ page, for the purposes of this comparison, it is only the inventor's own income which is used in this comparison, not the total income of the household: Regardless whether an applicant, inventor, or joint inventor filed a joint tax return rather than a separate tax return in the preceding calendar year, the "gross income" limit applies to the amount of income the person would have reported as gross income if that person filed a separate tax return, which includes, for example, properly accounting for that person's portion of interest, dividends, and capital gains from joint bank or brokerage accounts.
    Answer Applies to: New York
    Replied: 1/31/2014
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