Key Takeaways

  • A patent protects your invention by giving you the right to exclude others from using, selling, or profiting from it.
  • You don’t need a patent to sell a product, but it can give you a strategic edge.
  • There are three main types of patents in the U.S.: utility, design, and plant.
  • Provisional patents are easier and cheaper but must be well-prepared to be effective.
  • A professional patent search is essential to assess uniqueness and avoid future disputes.
  • Confidentiality agreements are key when sharing invention details.
  • The international patent process differs from the U.S. and requires strategic planning.
  • Mistakes like poor drafting, disclosing ideas prematurely, or skipping legal help can jeopardize your rights.

Do You Need a Patent?

When asking “Do you need a patent,” remember that entrepreneurs and inventors should always patent their inventions in order to make them commercially viable. If you want to enter a product onto the marketplace or license an idea, you need to ensure that your invention is protected by a patent. Legally, a patent is a “negative right” that gives an inventor the right to exclude others from claiming ownership of an invention.

What Is a Patent and Why Is It Important?

A patent is a form of intellectual property protection granted by the government that allows inventors to exclude others from making, using, or selling their invention for a specific period of time. In the U.S., patents are governed by federal law and issued by the United States Patent and Trademark Office (USPTO). Patents foster innovation by offering inventors a temporary monopoly in exchange for public disclosure of the invention. This disclosure contributes to the collective knowledge pool while incentivizing advancement.

Patents are especially important in highly competitive industries where product imitation is common. They provide a legal foundation for businesses to secure investments, pursue licensing deals, and expand their market presence.

Patent Your Product

Unprecedented and novel inventions should always be patented. Patents granted by the United States Patent and Trademark Office protect are enforceable throughout the United States. To gain protection in other countries, foreign patents can be applied for; however, many countries have relatively weak patent protections.

In the United States, there are three main types of patents: utility, design, and plant patents. Utility patents protect an invention’s function; design patents protect an invention’s aesthetic; and plant patents are granted to protect new botanical strains.

Utility patent applications typically cost between $5,000 and $10,000. Technologically complex inventions can cost more. The patent process can also cost more if the Patent Office decides to contest your claim. For most patents, the application process involves a back-and-forth between the inventor’s patent attorney and a patent examiner from the Patent Office.

Patents are not only costly, but they usually take several years to accomplish. However, once a full patent is granted, it will last for 20 years dating back to the time of filing. If a provisional patent was applied for, the protections will be effective from the date of the filing for the provisional patent.

Inventors should always carefully study the marketplace to make sure that their idea truly is unique. If an invention is too similar to something that already exists, the patent application could fail.

Understanding Patentability Requirements

Not all ideas qualify for patent protection. To be patentable under U.S. law, an invention must meet the following core requirements:

  • Novelty: The invention must be new and not previously disclosed in prior art (existing knowledge or products).
  • Non-obviousness: The invention must not be an obvious improvement or modification of existing technology to someone skilled in the field.
  • Utility: The invention must be useful and serve a functional purpose.
  • Enablement: The patent application must describe the invention in a way that enables others in the field to replicate it.

Additionally, certain categories are not patentable, such as abstract ideas, laws of nature, and natural phenomena. Software, business methods, and biotech inventions can be patentable, but often face heightened scrutiny.

Do I Need a Patent to Sell My Product or Service?

Patents are not legally required before you sell your product or profit from your idea. There are many products and services sold in the United States that are not patent-protected. However, a patent is necessary if you want to prevent others from making marketing, selling, or importing your invention. Patents are thus optional, but they are a smart business tool that gives inventors a competitive edge in their marketplace.

Although patents provide a right to exclude others from using or claiming an invention, they will not protect an inventor from claims of infringement by others. Inventors should gain a “freedom to operate” opinion (FTO) from a patent attorney if they are similar products or ideas on the market already.

Alternatives to Patents

While patents are powerful tools, they aren't the only way to protect intellectual property. Here are some alternatives:

  • Trade Secrets: Confidential business information (like formulas, processes, or methods) kept secret to maintain competitive advantage. Coca-Cola's recipe is a classic example.
  • Copyright: Protects original works of authorship such as writings, software code, and designs. It does not protect ideas or inventions.
  • Trademarks: Protects brand identifiers like names, logos, and slogans. While not related to the functionality of an invention, trademarks help distinguish your product in the market.

For some inventors, especially those with limited resources or fast-moving markets, trade secrets or first-mover advantage may offer sufficient protection without the costs and delays associated with patents.

Mistakes Inventors Make With Inventions

There is no shortage of information online for new inventors to access. Some of it is very good, but many sources are questionable. Inventors should seek information about the patent process from qualified sources.

Sold the Invention

In the United States, inventors that sell an invention must file a patent application within 12 months of the sale. If more than 12 months pass and no patent application has been filed, the inventor forfeits their right to obtain a patent from the United States Patent Office.

Publicly Used the Invention

Public use of an invention creates problems similar to those that come up when there is a sale. Before using an invention publicly, a patent should be applied for, especially because in many countries there is no grace period.

Terrible Provisional Patent Applications

Provisional patent applications are invaluable when they are properly drafted, but they can be damaging when they are poorly done. Provisional patent applications are easy to file – all that is necessary is a cover sheet and a description of the invention. The Patent Office does not examine provisional patents when they come in.

Because they are so easy to get done, many discount vendors offer provisional patent application services for just a few hundred dollars. But inventors should beware these cheap options. A provisional patent needs an adequate description or the effective filing date of the provisional patent won’t count. This essentially renders the provisional patent worthless. If a provisional patent doesn’t prove that you had a complete idea, it offers no real protections.

No Professional Patent Search

Before deciding to patent, inventors should have a professional patent search conducted to confirm that there is nothing too similar already out there. Considering there are over 9,000,000 patents in the United States, and millions of other ideas that have been made public, almost any idea will require a thorough search.

Patent professionals know how the United States Patent and Trademark Office classifies inventions, how patent attorneys describe things, and how to conduct a thorough search. When inventors that lack expertise with patent searches try to do their own patent search, they risk missing a similar invention, which can have a devastating impact later on. And inventors should remember: just because a patent search doesn’t find anything does not mean there is nothing similar out there.

Internet Searches

For many reasons, some products are patented but not available online for purchase. Inventors may have patented an idea, but then run out of money to execute a business. Just because a product cannot be found online does not mean that a patent does not exist.

Common Pitfalls in the Patent Application Process

In addition to premature public disclosures and poorly drafted provisional applications, inventors should avoid these common missteps:

  • Inadequate Documentation: Failing to keep detailed records of the invention process can harm credibility and weaken your claim in disputes.
  • Relying Solely on Online Tools: While online filing systems make patent applications more accessible, they cannot replace legal guidance on patent strategy, claim drafting, and legal language.
  • Ignoring International Protection: If your product has global potential, failing to file in foreign jurisdictions within 12 months of your U.S. application may forfeit your rights abroad.
  • Misunderstanding Patent Scope: Some inventors believe a patent covers broader territory than it does. In reality, patent claims define the specific scope of protection. Overly broad claims are often rejected or invalidated.

How to Patent an Invention Idea

Ideas cannot be patented; only inventions can be patented. Your idea is the first crucial step towards gaining patent protection but to actually gain a patent the idea needs to be fleshed out. The idea needs to be described as a tangible thing. And it needs to be described in sufficient detail.

Going from a mere idea to an invention is a process that takes time. But when you have reached the point that you can fully describe the idea in terms of an actual product or method, then it can be patented.

A patentable-invention idea can be explained fully to others. The so-called “enablement” requirement for patents must be met. This means that others must be enabled to copy and use your invention based solely on your description of it. It isn’t necessary to describe every little detail, but it should be sufficient to allow others to replicate and carry out the invention if they wanted to. Drawings and illustrations are almost always a necessary feature of a sufficient description. A prototype is optional.

International Patent Protection

A U.S. patent provides protection only within the United States. If you plan to sell your invention abroad or license it to foreign companies, you’ll need to seek protection in those countries.

Two primary international routes are:

  1. Paris Convention: Allows inventors to file in other member countries within 12 months of their U.S. application while retaining the original filing date.
  2. Patent Cooperation Treaty (PCT): Offers a streamlined application process that covers over 150 countries. The PCT doesn’t grant international patents but provides a single application that defers the need to file in each country immediately.

Keep in mind that different countries have varying standards for patentability, and enforcement abroad can be more challenging or expensive.

Do You Have a New Invention Idea?

After making sure your invention is a new idea by conducting a thorough patent search, it is also important to protect your invention so that others do not claim it. Too often, inventors tell others about their idea before filing a patent application, and this leads to multiple parties claiming ownership of an invention idea.

In other cases, companies research and development programs may coincidentally be working on a similar idea. Therefore, it is important to get a provisional patent as soon as possible. It is also important not to discuss your idea or disclose your idea to any companies without them first signing a non-disclosure agreement. Without such an agreement, a company could legally use and profit from your idea without your permission, and even patent the idea itself if you haven’t already done so.

What Happens After You File a Patent Application?

Filing a patent application is only the beginning of a longer process:

  • Patent Examination: A USPTO examiner reviews the application, searches for prior art, and evaluates whether the invention meets the requirements.
  • Office Actions: Most applications receive at least one Office Action, where the examiner raises issues or rejections. You (or your attorney) must respond to move the application forward.
  • Allowance or Rejection: If the examiner is satisfied, a Notice of Allowance is issued. Otherwise, you may appeal or abandon the application.
  • Post-Grant Maintenance: Utility patents require maintenance fees at 3.5, 7.5, and 11.5 years to remain in force.

This process can take two to five years or more, depending on the complexity of the invention and the examiner’s workload.

Protecting Your Invention When You Need Help

Protect your invention with confidentiality and non-disclosure agreements. A confidentiality or non-disclosure agreement prohibits a party receiving information from disclosing that information to others.

Many inventors reach out to family, friends, and business associates to get help with the patent process. Getting help can be a good idea, but remember to protect your invention with a confidentiality or non-disclosure agreement. Even if you trust the person you are confiding in, once you disclose your invention to others, the invention is no longer considered a “trade secret” unless you have a confidentiality agreement.

Patent Attorneys vs. Patent Agents

When seeking professional help, inventors can choose between patent attorneys and patent agents:

  • Patent Attorneys: Licensed to practice law and can represent clients in all legal matters, including litigation, licensing agreements, and appeals.
  • Patent Agents: Licensed by the USPTO to prepare and file patent applications but cannot offer legal advice outside of patent prosecution.

Both must pass the USPTO’s rigorous patent bar exam and are knowledgeable in technical fields. For complex inventions or broader IP strategy, an attorney may be the better choice.

Reasons to Patent Your Idea

These are the most common reasons that people patent their ideas:

  • To keep others from stealing it
  • To raise the value of the idea so that it can be licensed
  • To prevent competitors from using it
  • To establish a specific market share

The Fear That Others Will Steal It

A patent is the only way to prevent others from taking your idea. Because it is the only legal mechanism available, patents are essential when it comes to keeping others from stealing your idea.

To Generate Licensing Revenue (Royalties)

Many inventors don’t have the capital or infrastructure to produce and sell their invention themselves. From a business standpoint, it is often much more profitable to license the idea out to a company that will pay the inventor royalties in return. In these arrangements, the inventor retains ownership, but the company has the right to produce and sell the invention.

To Prevent or Reduce Competition

If your goal is to sell your invention, preventing competitors from selling the same or similar products is crucial.

To Maintain or Acquire Market Share

Having a patent on a new invention can boost you over the competition and give you a solid market share.

To Enhance Company Valuation

Patents protect the value of an invention. When a business owns patented technology, its value is greater.

For Business Credibility or Marketing

Not only does patenting an invention have intrinsic value to the patent holder, but patents can also be used as effective marketing tools. Potential customers and investors are drawn to patented ideas because they are unique.

For Personal Credibility or Vanity

Some inventors just want the validation of having an idea patented. It does feel good to have a patented idea. While this might not be enough to justify the cost of patent by itself, it is another reason to get a patent.

For the Experience

Going through the patent process is an educational experience. For inventors that are likely to go through the process more than once, the experience of going through the process the first time is valuable.

To Avoid Infringing Someone Else’s Patent

As previously mentioned, a patent does not protect an inventor from claims of infringement. Having a patent is no guarantee that an idea is not infringing on some earlier patent. Therefore, inventors shouldn’t think that getting a patent automatically means they are safe from claims of infringement.

Frequently Asked Questions

  • How long does it take to get a patent?
    Typically, it takes 1 to 3 years for design patents and 2 to 5+ years for utility patents, depending on the complexity and backlog at the USPTO.
  • What’s the difference between a provisional and non-provisional patent?
    A provisional patent is a temporary filing that holds your place for 12 months. A non-provisional patent is the formal application reviewed by the USPTO.
  • Can I patent an idea without a prototype?
    Yes. You don’t need a prototype, but your invention must be fully described so someone skilled in the field could replicate it.
  • What is the cost of filing a patent?
    Costs vary. A provisional patent may cost $1,000–$3,000, while a utility patent could range from $5,000 to $15,000 or more, especially for complex inventions.
  • Do I need a lawyer to file a patent?
    You’re not legally required to use a lawyer, but professional help significantly increases your chances of success and ensures your patent claims are strategically drafted.

Conclusion

It is worth it to carefully consider why getting a patent is the right choice for your invention. When you have carefully thought through the reasons why you want to get a patent, you can make an educated decision about whether a patent is worth the cost. Every inventor’s situation is different.

If you need help filing a patent application, you can post your legal need on the UpCounsel Marketplace. The attorneys on UpCounsel are experienced in their legal fields and ready to help. UpCounsel accepts only the top 5 percent of lawyers that apply to its site.