So you’re sitting on a great invention. You’ve worked out the kinks, sketched your design, or maybe even made the prototype. Now you’re ready to secure patent protection for your hard work. Before you go down that road, there are a few things you need to know about the complicated and costly patent process.
Patent applications are notoriously long and expensive, but countless inventors have come out of this process, feeling a sense of accomplishment. There’s no reason that you can’t too. It all starts with understanding the Four Steps to the Patent Process.
Before introducing the four steps, here’s a helpful lead-up to make sure you’re ready. You need to ask yourself the following questions, and then decide if this course of action is the best choice for you.
- Will I benefit from a patent? Patents offer you exclusive rights to your invention. These rights mean that no one else will be able to profit from your invention or product. Patents can help reduce market competition. If you’re not already in business, getting a patent will allow you to produce, distribute, or license the invention yourself.
- What are my risks? Patents are costly to apply for and then maintain. In addition to getting the patent, the legal fees for fighting infringement cases can go through the roof. If you plan on hanging a patent on the wall, it could represent a lot of wasted time, money, and potential.
- Can I afford it? There are fees on fees on fees when dealing with patents. For a utility patent (see below), the application fee can cost around $300. A search fee may run you $600, and the examination fee will likely set you back more than $700. Those numbers don’t include issuing fees, extension fees, maintenance fees, and other miscellaneous fees. These also exclude any legal fees that can run into the thousands. You can learn more about these costs on the United States Patent and Trademark Office (USPTO) website.
- Am I really ready to apply? You need to have an actual invention to patent. You cannot patent an idea. While you don’t need to build a prototype, it does help. You will have to include a complete description of the invention with your application, along with instructions for how it will work. The documents must be thorough enough that someone could make the invention themselves based on the plans that you provide. This part of the application will also need to include drawings of the invention. If you don’t feel comfortable doing that yourself, you can hire a patent illustrator to do it for you.
1. Apply for a Patent with the United States Patent and Trademark Office
Determine what type of patent you need.
Once you start applying, it’s not easy to go back and make a quick correction. It can be tempting to tailor your patent application based on the cost and time required to complete the paperwork. Cutting corners is where many people make a mistake. You do not want to rush the application process. Trying to skim a few dollars could cost you any real protection granted by what should have been a well-written patent. Each patent type exists to protect its own unique qualities.
The three types of patents:
- A utility patent: Reserved for functional inventions
- A design patent: Reserved to patent aesthetics, not functionality
- A plant patent: Reserved for brand new plant varieties
Do a Patent Search.
If you try to patent something that already exists, you’re going to be in for a big disappointment. Once you have chosen the correct type of patent you need, do a thorough search for any existing patented inventions that resemble your invention. You can do this with the resources provided by the USPTO. It may be worth hiring an attorney to help you with this part of the process. There a lot of important details regarding patent searches, and it’s easy to misinterpret the results of your research.
Time to Apply!
If you opt to go it alone (aka without legal help), you’ll want to familiarize yourself with uspto.gov. There, you’ll find everything you need to apply along with helpful resources for the first time inventor.
To start the application, find the appropriate forms on the USPTO website. They offer Patent Application Guides that will walk you through each step of the application process. Be sure to go over all these guides and any paperwork carefully. Your application must include the completed forms, an application number, and filing date, along with any fees.
Don’t get discouraged by the amount of information they are requesting. You must describe every detail so that your invention can be protected. Patents can help protect your products from exploitation by giving you rights of ownership for the idea and invention. To grant you that right and protection, they need to know all the parts, steps, and secrets to your invention. Once your patent gets accepted, keep in mind that the whole world will also see the idea. A patent-pending status will help warn others to stay away from your concept until a patent gets awarded. Once that happens, you may be able to license your idea to other inventors.
2. Examination of Application
Once the USPTO receives your application, it will get examined by the Office of Initial Patent Examination. The US government gets around 500,000 patent applications each year, so this is where your patience is essential. It could take anywhere from six months to five years for your request to reach the hands of an examiner. Since they examine applications on a first-come, first-served basis, the patent office can easily fall behind.
Once they assign your application to an examiner, he or she will start by making sure that your claim meets all of the requirements. It is essential to understand every detail in your application before submitting it. It is also one of the reasons that patent attorneys are beneficial. You must dot every “i” and cross every “t” before applying. If they find any discrepancies, inaccuracies, or incompletions, they will reject your application.
In most cases, they will likely reject your application anyway (see below), but you should still strive to submit the best claim possible. If you receive a rejection, it’s not a significant setback. You’ll just need to correct those issues and resubmit.
When they accept your application, your examiner will determine if you are entitled to patent protection. A patent application must meet the following conditions:
- Eligibility. Patent law states that you cannot patent naturally occurring phenomena, abstract ideas, or the works of Mother Nature. Similarly, they’ll make sure that you’re not mistaking a patent with a trademark or copyright, which is entirely different.
- A New Invention. You cannot patent something that is already known or in the public domain.
- It can’t be obvious. The patent system exists to provide access to technology in the name of modernization and originality. If your invention is something that anyone could come up with, there is no reason to approve its patent claim.
- An application must be descriptive. Your patent must describe how to recreate and use your invention correctly.
If your application meets these criteria, you will be on your way to securing a patent.
3. Dealing with the Rejection of Your Patent Application
Unfortunately, the initial decision of the Patent Office will likely be to reject your application. It’s just a reality of the patent process. When this happens, don’t let it deter you. The examiner has denied your claims, not your invention, and there are ways to challenge their ruling. Read through their notes and consider whether their issues with your claims are valid. If you still stand by your application, you can file a response. Rejections are only the opinion of the examiner, and it is your job to change their mind.
The first thing you’ll need to do is write and send in your response to their rejection letter. The Patent Office insists on a written copy for public records. Do not attempt to blindly call them with the hopes of accomplishing anything beyond leaving a message. You can request to speak to your examiner later in the process to additionally plead your case.
If you are unable to sway your examiner, you can ask for a new one or insist on a supervisor. However, this is generally not the best way to approach the situation. The Patent Office won’t give you a new examiner unless they decide that the one you already have is unable to do their job. Your examiner has complete authority over your application, so requesting a supervisor isn’t the best approach.
If you still don’t have luck with your written response or interview, don’t give up. You still have a chance to appeal the rejection with the Patent Trial and Appeal Board. It isn’t cheap, but it is useful as your last resort.
If you don’t already have an attorney helping you, this might be the time to hire one. They are more knowledgeable of the law and application process, which might be the edge you need to get your approval. You can do it yourself, of course, but having professional help could up your chances significantly. As a first-time patent filer, it is easy to miss the particular details in your application paperwork that could make your patent valuable. We recommend that you always hire a patent attorney if you are serious about protecting your invention.
4. Get Your Patent Approval (Hopefully!) And Look To The Future For Your Invention
When you get that coveted patent approval, you can go ahead and celebrate, but only after paying more fees! This time, you’ll need pony up for an issue fee. The USPTO will send you a Notice of Allowance, giving you three months to pay. The total will range anywhere from $500 to $1,000. Of course, that doesn’t include legal fees if you have a patent attorney.
Once you pay your fees and your patent goes from “pending” to “approved,” you are all set to move forward with your shiny new patented invention. Your goal at this point is to keep everything moving forward. You can license the invention, sell the patent outright, or manufacture your products. Whatever you decide, you now have the rights to your invention to do with; however, you see fit.
After A Patent gets Granted
You made it this far, but your job is far from over. You will have a long road ahead of you if you plan on seeing any kind of reward from your newly secured patent.
Protecting your patent
Once you secure a patent, it’s up to you to make sure that your exclusive rights are protected. Keep an eye on your competitors to ensure that they aren’t producing anything that could be considered part of your claims or possible infringement. Unintentional or not, don’t let anyone abuse it without at least exploring your options. You can simply request that they stop making the product or license the invention to them to share in the profits. If that doesn’t work, you can consider taking legal action. This is the part that most people do not understand. If someone ignores your requests, you will need to hire an attorney, and they don’t work for free. You will need to spend money to fight any violations of your patent. Unfortunately, this is when you will find out how good of a job you did with your application. You may receive a challenge by the infringing parties lawyers regarding the actual validity of your claims. Far too often, patents don’t make money or hold up in court as well as you may think.
Maintaining your patent
Maintaining a patent is mostly just paying the appropriate fees (aptly called “maintenance fees”). Occasionally, you’ll need to pay these fees to extend your patent. Otherwise, your claim will expire, and the instructions for your invention will go into the public domain. That isn’t always a bad thing. If you failed to keep your idea moving, there’s no reason to keep paying for a patent that loses money over the years.
This application process can be challenging, but it’s not impossible to succeed. Inventors receive patents every single day. If you want things to go smoother, consider hiring a patent attorney. If you’re willing to gamble and save money, do it all yourself. The USPTO offers many resources to help inventors apply on their own if they can’t or aren’t willing to incur all the extra legal costs.
The patent system exists to serve the greater good. Patents allow the government to protect inventors by granting them sole rights to their inventions. After a patent expires, the concepts become part of the public domain, which offers more opportunities for advancements in technology, art, and science. It’s all a part of the push for innovation. The real question to ask yourself is if the value of your invention outweighs the struggles and costs of obtaining a patent.
Getting a patent is tiring and taxing, but you will know better than anyone if it’s worth the trouble.