What Is a Utility Patent and How Long Does it Take to Get?

The average patent approval process takes 25.6 months. A utility patent is the term used to describe what most people think of simply as a patent and is the most common type of patent. Utility patents protect a variety of inventions from duplication by others for 20 years from the application submission. Other types of patents include design patents, plant patents, and more.

Should I Take the Time to Get a Utility Patent?

Applying for and receiving a patent can take years and be very expensive. You do not need a patent to benefit from an invention; in some cases keeping a technique or formula secret is a better way to protect your invention from being used and marketed by others.

Most people overvalue the patent. Make sure to compare your creation to what is already on the market and research census data to ensure that taking the time and money to apply for a patent will be beneficial.

To qualify for a patent, your invention must be novel. No published source, patent application, or online video can demonstrate your idea. The product must be different enough from others that it warrants distinction. While color changes are not enough of a reason to receive a utility patent, a change in size or features that solve a problem merits one as long as you can justify the difference in the application.

Schedule a consultation with a lawyer to assess if your product is likely or unlikely to reach patent pending status.

Ensure that your idea is not already taken by investigating existing and pending applications. Some of the patent search types include a clearance search, a patentability search, a validity search, and a mining search. The Cooperative Patent Classification organizes patents, and the United States Patent and Trademark Office posts videos to help researchers to complete a thorough search through the system. The World Intellectual Property Organizations' IPC Catchword Index categorizes international patents. Hiring a patent searcher to determine if your idea is already in the patent database usually saves inventors many hours of work and thousands of dollars. Getting a packet ready for submission usually takes three to six months.

Timeline for Getting a Utility Patent

At the end of 2016, the average patent approval process took 25.6 months. The duration of the process depends on what class, subclass, and art unit the invention falls into. You can use the First Office Action Estimator once you receive the Official Filing Receipt from the USPTO to get an estimate on when the initial decision will take place.

To speed up the process, you can pay for the Track One System of the Patent Office, which avoids part of the line. The cost ranges from $1,000 to $4,000 depending on the size of your organization. This option reduces your timeline by approximately half. A maximum of 10,000 applications take this path every year. In 2013, 92 percent of the patents that applied to the Track One System were allowed to go through this quicker process. Using this system, the first office response usually comes within two and a half months.

If you are 65 or older, apply to get bumped to the front of the line for free. If you are terminally ill, submit a doctor's affidavit to bypass the line.

Those attempting to get a patent in a popular field like computer software can expect to wait longer. It is not uncommon for some to wait twice as long as others in a field with less patent applications. If you file a Continuation Application or a Request for Continuing Examination, don't be surprised if five or six years pass before your patent is approved. Each appeal adds time to the process.

What if You Don't Get a Utility Patent?

Consider trademark registration. Think of a name that perfectly corresponds with your product and use it when you meet with prospective licensees. Like a patent, the trademark law grants rights to the first person to file for it. Check out your state law or consult a lawyer about the minimal cost of a trademark. Once your trademark is approved with the USPTO about 10 to 14 months after submission, you have a valuable tool that takes less time than a patent.

Points of Note About Getting a Utility Patent

  • The Patent Cooperation Treaty covers 149 countries and makes it possible to seek patent protection for an invention in many countries simultaneously by filing a single "international" patent application.
  • Once you have a patent pending status in hand, you can sell the rights to it for economic gain.
  • Those who submit a patent application on their own may be able to get it accepted for as little as $1,000 and lots of labor, but that is very unlikely.
  • Hiring a professional usually increases the odds of the patent application being accepted. Most patent agents and lawyers charge a minimum of $100 per hour, and hundreds of hours are usually expended to prepare and file a patent. The process may require more than $100,000, but it is more likely not to exceed $20,000.
  • The peak value of a patent usually occurs around the eighth year.
  • The fees associated with a patent are based on your status as a large entity, small entity, or micro entity. A small entity is an individual or business with less than 500 employees, a non-profit, or a college. A micro entity falls under the small entity category but also has an inventor who hasn't been named on more than four patents, an income below the gross income limit on the USPTO's site, and no licensing business partners that exceed the income limit.

Tips for Success When Getting a Utility Patent

  • Don't speak to potential investors until you file for a patent.
  • Submit a detailed application because if you don't, it is likely to get rejected.
  • Include pictures, technical terms, and specifics on the concept.
  • Disclose all information because the final patent can contain less information than the original but nothing can be added. The patent must teach someone how to create and use your invention.
  • Those who don't seek advice from a lawyer usually end up wasting their resources. All patent lawyers and agents register with the United States Patent and Trademark Office. The governmental agency verifies their qualifications, supports their use of best practices, and requires them to pass an exam. While an agent and a lawyer are both qualified to represent clients, an agent is less qualified. They hold a minimum of a bachelor's degree in science or engineering while an attorney has passed the bar exam and can represent you in court.
  • Make sure your application is not too broad or too specific.
  • Ensure that all specifications are followed.
  • Proofread and edit your application before speaking to a lawyer. Correctly spelling names is critical.
  • An examiner must approve only the patents that can be upheld in a court of law. Work with the examiner.
  • If a U.S. patent is denied, it is not any easier to get an international one.
  • Employees who create work-related products while at a company usually cannot patent their inventions without their supervisor's permission.

Steps to Getting a Utility Patent

  1. Consider if this product will be useful and novel for your target audience. Ask yourself if you have a large audience that will contribute less or a small one that will contribute more.
  2. Collect an application transmittal form, gather the initial fees, and complete the application data sheet. All patent applications must be submitted in English. Digital versions can be 1.5 or double-spaced documents with one-inch left margins and ¾-inch right, top, and bottom margins. Written portions can also be submitted in PDF format, but all drawings must be in PDF format. Submit all parts of the packet simultaneously to a professional to ensure the greatest chance of success. The mandatory specification sheet must include the following
    • A cover sheet naming the invention
    • Cross references to previously filed inventions (if patent is an adaptation)
    • Disclosures of federal funds used
    • The name or names of the inventors
    • An appendix
    • The detailed origin of the creation
    • A short abstract of the item
    • Drawings or diagrams
    • An explanation of all visuals of the item
    • A declaration of originality
    • A certification of a legal authority
  3. File the patent online or by mail with the United States Patent and Trademark Office. The online process is less expensive. The Patent Reform Act of 2011 states that the first person to file gets the patent, not the first to create an item. A provisional filing protects the inventor for a year. This method is less expensive, and you can start making a profit as soon as the patent is pending, but the gain is short-lived. It is also a good option if you are not sure there is a market, but you want to protect your creation while you determine that before you spend endless dollars on a non-provisional patent. If you choose not to file for a non-provisional patent, your provisional patent ends and there are no more fees required.
  4. Convert the provisional patent to a non-provisional patent to benefit from the 20 years of economic gain.
  5. Wait. You will receive a filing date and an application number.
  6. Approximately 18 months after filing, you should be notified of the denial or acceptance of your patent. This is due to the backlog of about 500,000 patent applications. The United States Patent and Trademark Office's dashboard shows the average current waiting period. Over 80% of the applications fail the first time.
  7. Respond within the given amount of time stated in the letter. Begin the appeal process immediately if you are rejected. This is called patent prosecution.
  8. After the second rejection, a label of final action is applied to the patent. Appeal if you want or file a Request for Continued Examination, which gives the invention more time to convince the examiner of the worthiness of the application.
  9. Approval fees are paid upon approval of the patent. The patent should be sent in a timely manner.
  10. Additional fees come due at 3½ years, 7½ years, and 11½ years after the acceptance date. Not paying fees will result in a lapse of the patent.
  11. Be willing to uphold your patent using patent litigation. This sets a precedent for anyone who wants to infringe on your product while its patent is still enforced.

Getting a utility patent is a difficult process, but if you seek wise counsel and have a unique and useful idea, you could make a lot of money in time. You can post your utility patent or other legal need here and get free custom quotes up to 60% off traditional law firms from the top 5% of lawyers on UpCounsel with an average of 14 years of experience.