1. How to File a Patent
2. Steps to File a Patent
3. When Do You Need to File a Patent?
4. Filing Deadline
5. Common Mistakes
6. Frequently Asked Questions

How to File a Patent

Learning how to file a patent is complex as it requires you to send written statements about your design or invention, fill out the correct paperwork for the United States (U.S.) Trademark and Patent Office (USPTO), create detailed drawings of a product you want to patent, and pay the patent fee. When you file a patent, you create a public disclosure of your design or invention.

Steps to File a Patent

As of March 2013, the USPTO gives patents based on the first person or company to file the patent, not the first person or company to invent it. This "first to file" legislation can motivate inventors to file faster to protect their intellectual properties.

  1. Keep track of how you shape your product or process during the concept stage.

  2. Create a working prototype of your product or invention.

  3. Keep your invention secret. If you sell the product or tell others you know about your invention, you could put your patent eligibility at risk.

  4. Write a detailed description of the invention or design. Using your description, another person or company should be able to recreate your invention (if they could). 

  5. Sign and date the description, then have a witness sign and date it, too.

  6. Decide if your invention or design could work commercially. Many companies use provisional patents to do more research since the provisional patent gives them an extra 12 months of protection.

  7. Do a patent search. Make sure you can't find any cases of prior art or products that your invention might infringe on. You can hire a patent lawyer or company to do a prior art search, which compares your invention against existing patents. You can also do your own patent search at a Patent and Trademark Depository Library where librarians can help you look for other patents.

  8. Look at what the market is doing. If another company already sells a product that looks or works like yours or if bring your invention to market costs too much, you might want to rethink the patent process. You must find your target market and decide how you will reach customers who might want to buy your invention.

  9. Hire a lawyer. A lawyer can help you write claims, create speculations, and make drawings for your patent application.

  10. File an application with the USPTO through its website at uspto.gov. Consider hiring a patent lawyer to help you through this process. If you file a patent application with missing information or information that's too broad, your application could be rejected. Your patent lawyer can also help you choose the right patent application.

    You'll need several items to file a patent:

    • Preamble: Name the invention, tell how you want others to use it, and describe your invention in a few words or sentences.

    • Images and Descriptions: You must send drawings or photographs and figure descriptions that show what each part does or why each part is special.

    • Claim: You can make a single claim in a patent application that explains what part or feature of the product you want to patent.

    • Oath or declaration: You create a document with an oath or declaration on the USPTO website or with your patent lawyer that has the inventor's name and an oath that says you are truthful in your application.

    After you file your application, the USPTO will name a patent examiner to oversee your case. The examiner does patent research, looks over your drawings, and decides whether to give you a patent.

  11. Pay the USPTO fee.

  12. Appeal a denial. If the USPTO rejects your application and you feel the USPTO has made a mistake, you can go through the appeal process.

When Do You Need to File a Patent?

You want to file a patent application as quickly as you can, such as when you create a useful prototype for your product. If you send an application too early, you risk making changes to your product. When you make changes, you have to file a patent reissue, which costs time and money.

You can file a patent by yourself, but most inventors prefer to work with patent lawyers. You might get confused or make mistakes if you try to file a patent on your own. A lawyer can tell you if you can patent your idea and help you with your patent application.

After you file for a patent and you get your patent, lawyers can also help with patent litigation. You must defend your patent if another company tries to own the idea behind your product.

Filing Deadline

The USPTO doesn't put deadlines on filing a patent. You can file for a patent at any time, whether your product or process is for sale or not. However, the review process takes an average of 18 months for the USPTO to decide to give you a patent or reject your application depending on how many applications the USPTO receives. Filing quickly means getting a patent faster.

Whether you file a provisional patent application (PPA) or a regular patent application (RPA), be careful about patent trolls. These companies or people buy old patents that aren't in use and sue companies for patent infringement. Getting a patent on your invention can quickly protect you from patent trolls and allow you to tell others about your product without worrying about someone trying to steal your idea.

Common Mistakes

Companies sometimes make mistakes when they file a patent:

  • They don't use a lawyer to help them fill out the application.

  • They don't use enough details to describe the invention or design. Without details, the USPTO can reject your application.

  • They don't research patents and learn about possible prior art, designs, or ideas that already exist.

  • They don't get a provisional patent. Without one, they might rush through the RPA application process.

Frequently Asked Questions

  • What Is a Patent?

A patent prevents other companies or people from copying your design or invention and selling your idea to the public. When you make a valuable invention, that product becomes a piece of intellectual property and filing a patent allows you to protect it. Manufacturing, distribution, and retail companies often file many patents.

A patent is not the same as a trademark or copyright. A trademark can be a word, phrase, or drawing that describes a brand or the source of a set of goods. A copyright protects written or artistic works like a novel or an architect's building.

The USPTO gives patents that let businesses or people have the exclusive right to make and sell a product based on its uniqueness. You'll find many types of patents, like provisional patents, and the filing process can be different for each one:

  • Design patent: This patent protects the ornamentation (what something looks like) or structural design of a manufactured product.
  • Utility patent: This patent protects a product's intended use.
  • Provisional patent: This patent protects a patent holder's intellectual property for one year. During that year, the patent holder can say the product is "patent pending."
  • Why Are Patents Important?

If companies don't file patents for their designs and inventions, they can't protect their brands or their share of the market. Also, filing a patent allows you to defend your design or invention in or out of court. Without a patent, anyone can copy your invention and make money from it, so you don't want to forget about the patent application process.

The patent application is the first step to getting a patent. You send the application electronically through the USPTO website, uspto.gov. The USPTO then reviews your application and decides whether you should get a patent for your design or invention.

  • Is a provisional patent necessary?

Since utility patents can take two or more years to process, provisional patents help you get protection right away. If you decide to file a patent within the 12-month period, you can claim the patent from the date you filed the PPA. This step is not needed, but you might want to get a provisional patent if you want extra time to fill out an RPA.

  • How much will you spend to file a patent application?

Patent application fees can be different based on type and applicant. Utility patents can cost from $45 to more than $1,500. However, the USPTO discounts the application fees by 50 percent and 75 percent for small and micro applications. Meanwhile, software patents cost a median of $10,000, and PPAs cost between $65 and $260, depending on the size of the business that files the application.

  • What is accelerated examination?

The USPTO can speed up their review of patent applications for special cases. The applicant's age and their health can play a part in this decision. Also, products meant for counterterrorism, preventing the spread of HIV and AIDS, and other important acts can get special treatment.

The patent filing process can take between 12 months and five years, so be ready. From creating your invention to filing the application for a patent, you must protect your trade secrets and avoid infringing on others' intellectual property. Post your legal need to get free custom quotes from top patent lawyers on UpCounsel so that you can understand and increase your chances of getting your patent application approved.