What Is a Patent?

Before learning how to apply for a patent, you have to first understand that a patent is a property right that gives you, as an inventor, the right to sue others who try to use, make, or sell your invention without your permission. According to US law, only the inventor of an item can file a patent application for it.

If you want to protect your invention from thieves, you need to file a patent application with the United States Patent and Trademark Office. However, before you prepare the application, you should make sure your invention is patentable, perform research, and hire a qualified attorney.

There are three main types of patents that you may choose to apply for:

  • Utility patents are the most common. They cover inventions that have a specific function. Software patents are a type of utility patent, though some people place them in their own category. A utility patent is valid for 20 years after you file the application (or for 17 years after the application is approved, whichever is longer), but only if you submit the required maintenance fees.
  • Design patents cover non-functional parts of items, such as aesthetic features. A design patent is valid for 14 years.
  • Plant patents protect new plants.

Do not mix patents up with other parts of intellectual property law, such as trademarks and copyrights. Each of these is governed by different laws.

Also keep in mind that once your patent is approved, it doesn't mean it will stay valid. Another business may challenge your patent, and a court may determine that it isn't enforceable.

Why Are Patents Important?

Patents grant a limited monopoly on certain products, and this encourages inventors to come up with new ideas. Without patents, innovation would suffer.

Are There any Reasons Why You Would Choose not to Patent Your Invention?

One reason you might choose not to patent your invention is because your idea isn't patentable. There are a few reasons why an invention might not qualify for a patent:

It Is Not Unique Enough

To qualify for a patent, an invention must be novel, meaning that it must be in some way be different from prior art. Prior art refers to past patented inventions. In order to find out if your invention meets the novelty requirement, you will have to do extensive research. You can search the Patent Database and Patent Application Database online. You should also look at scientific journals in your industry.

Having a well-rounded knowledge of prior art in your industry will help you with the patent application because you will be able to thoroughly describe how your invention is different from or improves upon past inventions.

It Is Obvious

Patented inventions must be unobvious. Someone with average skill in your industry should not view your invention as obvious.

You Do Not Have an Invention

Ideas do not qualify for patents; only inventions do. Therefore, you should be able to give a detailed description of your invention and how it works.

Even if your invention is patentable, you might not want to pursue a patent if your invention has limited commercial value. If you perform research and find that there is little to no demand for your invention, you will save money by not getting a patent.

How Can You Apply for a Patent?

To apply for a patent, you must:

  1. Be sure that your invention is patentable. It must be different from previously patented inventions, and you must be sure that you have an invention rather than just an idea.

  2. Perform patent research. You can hire someone to help you with this, or your attorney can contact a professional researcher. This research will help you describe how your invention is different from prior art, and looking at past patent applications can give you a feel for how your application should look.

  3. Fill out your patent application. The application has a few parts:

    • The specification. In this section, you'll give enough details about your invention that someone with average skill in your industry would be able to make your invention based on your instructions. The specification includes:
      • An abstract, which is a brief preview of the rest of the specification. You can also mention your invention's title.
      • Background information, which outlines what need your invention fills or what problems it solves.
      • A summary, or a brief explanation of your invention and what it does.
      • A detailed description of your invention. It should discuss the field the invention belongs in and give information on how someone might construct the invention. It should also state the industrial application of the invention.
      • A conclusion that sums up the advantages of the invention.
      • Drawings of your invention. You can hire a patent illustrator to help you with this. In the specification, you can include notes on the drawings.
      • Claims. Claims describe which parts of your invention you want to be protected by the patent. There can be both independent claims and dependent claims. Dependent claims are connected to the independent claims. Your lawyer can give you guidance on how narrow or broad your claims should be.

    You can submit your application via mail or fax but eFiling is easier.

    Along with your application, you should also send:

    • Filing fees
    • A patent application declaration, which says that you truly invented your product
    • An information disclosure statement, which provides any extra relevant information. For example, you can talk about patent applications that you know are similar to yours
  4. If you wish, submit a non-publication request. If you do not submit this, the USPTO will publish your application 18 months after you submit it.

  5. Communicate with the USPTO. A single patent examiner will be assigned to your case, and you or your attorney will be in touch with this person as they consider your application.

    Applications are rarely approved on the first try. The USPTO may issue a non-final rejection or a final rejection. Each of these requires different legal steps that your lawyer can help you with. Common reasons for rejection are that an invention is too obvious or that the application didn't provide enough detail. If your application is rejected twice, you can file an appeal with the Patent Trial and Appeal Board.

What if You're Not Ready to Apply for a Patent?

Provisional Patent Applications

If you want to protect your invention but aren't yet ready to dive into the patent application process, you may want to consider submitting a provisional patent application. A provisional application is affordable, costing only $130 in filing fees for micro entities, $130 for small entities, and $260 for larger businesses.

Once you submit a provisional patent application, you can say that your invention is "patent pending," which warns away anyone who might be thinking about stealing your idea. A provisional patent application is more affordable than a non-provisional application. It lasts for 12 months, and you can use this year to perfect your invention and prepare to submit a non-provisional application.

A provisional application is simpler than a non-provisional one; it requires fewer details about your invention. However, you should be as detailed as possible. Being too broad could mean that your provisional application gets rejected.

Out of the most outstanding things about the provisional patent application is that it gives you an advantage according to the law. In the US, patents are granted on a first-to-file basis, not on a first-to-invent basis. This means that the sooner you stake your claim, the less likely it is that someone will steal your invention and get a patent on it before you can.

Here are a few tips to keep in mind when you're writing your provisional application:

  • The description of the invention should be detailed enough that someone else could build the invention based on your description. You'll also need to include a drawing of your invention.
  • Be careful with the language in your description. Avoid words like "must" and "necessary."
  • Make sure your description is accurate but not too specific. This leaves you a little wiggle room to tweak your invention during the provisional period. Remember that any part of your invention not included on the provisional application is not protected by it.

How Much Does It Cost to Get a Patent?

It is next to impossible to guess how much you will have to pay to get a patent. However, you should be prepared to spend at least a few thousand dollars. There are three main costs you need to consider:

  • Government Filing Fees: The USPTO has its filing fees posted online. If you are a small entity, such as a university or a small business, your filing fee will be at least $140. For larger businesses, the basic filing fee starts at $280. You'll also have to pay search fees of $300 for small entities and $600 for larger businesses if you want a utility patent. You'll have to pay even more if your application has a lot of pages or if you originally wrote it in a language other than English and it needs to be translated.
  • Attorney Fees: How much you'll pay your attorney depends on a few things, including how complicated your invention is.
    • For simple inventions, you can expect to pay between $5,000 and $7,000 to your attorney.
    • For relatively simple or minimally complex inventions, you might pay between $7,000 and $10,000.
    • For moderately complex or relatively complex inventions, your fees could be between $10,000 and $14,000
    • For highly complex inventions and software, you could pay between $14,000 and $16,000. Sometimes, you will have to pay even more.
  • Research Fees: You can start patent research on your own, but hiring the help of a professional is wise. A patent researcher knows how to navigate patent databases and can give you a detailed report on existing patents that may affect how the USPTO reacts to your application. Research fees for simple inventions may be around $1,000. For more complex inventions, such as software, you may have to pay up to $3,000.

These fees are so high because many patent attorneys have knowledge that extends beyond the law. They may have technical expertise that gives them the ability to understand your invention.

Frequently Asked Questions

  • How long does it take to get a patent?

Don't expect your application to receive a quick response. Most patents take at least a year to get approved. It may take up to three or four years before you are the proud owner of a patent.

  • Is it possible to get a patent without a lawyer?

It is possible to get a patent without an attorney. However, because the patent application process is time-consuming and complicated, you can save yourself time and headaches if you hire a qualified attorney. Attorneys are familiar with how applications should be worded, and they can guide you through potential obstacles and loopholes.

If you choose not to get an attorney, the USPTO will provide extra help to you throughout the application process.

  • When is the best time to file for a patent?

You should file for a patent before you're ready to market your invention. A provisional patent application acts as a good placeholder if you want to share some details of your invention with the public but must perfect it before you start selling.

  • If more than one person invented something, should they all be listed on the application?

Yes, all inventors must be listed on the patent application.

  • What is the patent process like in other countries?

Every country has its own guidelines. In Kenya, for example, the process is similar to what it is in the US. Your application should have a description of your invention, information about the specific parts of your invention that you want the patent to protect, and a brief summary of your invention.

If you want to get a patent for your invention in another country after you file an application in the US, be sure to file your foreign application within 12 months of when you file in the US. Otherwise, your own invention might be used against you as prior art.

Applying for an international patent is also an option. This is possible thanks to the Patent Cooperation Treaty. You'll file one application, and 149 countries will simultaneously consider that application.

  • Does your employer have to be involved?

If you are an individual inventor and work for a company, be sure to check your company's policies. Usually, if you invent something while you're on the job, your employer will own it, not you. Some companies require that you tell them about anything you invent and get permission to pursue your project, even if the invention is unrelated to your industry.

  • Are there any scams you should be aware of?

Some sites offer to help you prepare a patent application for a flat fee, but then they will take the fee and not do anything for you. One big red flag is if a company asks you for money up front, whether by phone or email, and wants to wait to sign an agreement with you. Before you ask anyone for help with your application, do research to make sure you're hiring someone you can trust. Have a lawyer look over any contracts, and sign a contract before any money changes hands.

Applying for Your Patent

Applying for a patent is a complex and time-consuming process. By performing thorough research and getting legal help, you can patent your invention and protect your hard work. If you need help with applying for a patent, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.