How to Get a Patent: Everything You Need to Know
Learn how to get a patent to protect your intellectual property with our guide on patentability and steps on how to file an application with the USPTO.8 min read
Updated June 24, 2020:
How Do I Get a Patent?
To get a patent, you need to make sure your idea is patentable, which requires that your invention is fully developed and that no one else has already patented it, and then file an application with the United States Patent and Trademark Office (USPTO) which can be a complex process depending on patent type (utility, design, plant, or software patent).
What Is a Patent?
A patent is a property right that the government grants to inventors to forbid others from making or using an invention for a limited period of time (usually 20 years). If someone does steal your invention, the patent grants you the right to sue the guilty party.
Sometimes, someone who did not invent an item can hold the patent right when a patent owner chooses to sell the patent for profit. However, only the person who originally came up with the patented item may obtain the patent in the first place.
There are four main types of patents:
A utility patent protects inventions that have a specific function. This is the most common type of patent and serves as the focus for most discussions about patents.
A design patent protects non-functional parts of an item such as a unique shape or other aesthetic qualities.
A plant patent protects plants, such as flowers or vegetables, that an inventor has created or discovered and then reproduced.
A software patent protects software.
Why Is Getting a Patent Important?
There are a few reasons why inventors may choose to file for a patent: to gain recognition, protect intellectual property, or profit from an invention. Most commonly, profit is the driving motivation.
A patent protects an invention from being stolen. If the invention is stolen and another party begins to sell it, then you, as the patent holder, can sue for patent infringement. However, that protection does not go into effect until the United States Patent and Trademark Office approves the patent application.
How Can You Protect Your Invention Before You Get a Patent?
You can put together a confidentiality agreement. This is best used in circumstances where your idea is not yet fully developed and you want to seek others' help in perfecting it.
Whether you ask for help from family, friends, local university students, an inventors' group, or a commercial company, the confidentiality agreement will make it less likely that your idea will be stolen before it becomes a real invention.
If someone who signed the agreement later tries to steal your idea, you will be able to take legal action against the guilty party. A lawyer can create a simple confidentiality agreement for you.
Keep in mind that most companies will not help you develop your idea unless it is already developed to the point where you can file a provisional patent application, which provides a low level of protection against theft. Provisional patent applications will be discussed in more detail later in this guide.
Are There Any Reasons Why You Would Choose Not to Get a Patent?
Because patents are so important in protecting your intellectual property, there is only one valid reason why you would choose not to apply for one: Your invention is not patentable.
Your invention may not qualify for a patent either because your idea is not fully developed into an invention or because someone else already holds a patent for the same invention.
Has Someone Else Already Patented Your Invention?
Extensive research is necessary before you can say for certain that no one else has already patented your invention.
Begin your search with the USPTO Patent Database. There is also a Patent Application Database that contains information about patent applications that have not yet been approved. Both of these databases are accessible online.
Expand your research. Try searching other publications, such as scientific journals, that relate to the industry in which your invention fits. You may also have to search global patent databases.
Enlist professional help. Patent research is time-consuming and you may need the help of a professional researcher. A patent attorney can help you find someone who is qualified.
Make note of similar inventions and their differences. Bear in mind that you will probably come across inventions that are similar to yours. Prepare to explain how your invention is better than or different from the ones that came before it.
Is Your Idea Fully Developed?
You can't patent ideas; you can only patent inventions. However, you don't need a fully functioning prototype before you can say that you have an invention. What you do need is a full-bodied description of your invention.
Your description needs to have enough detail in it that someone with average skill in the realm in which your invention lies could understand the description and produce your invention.
Keep in mind, too, that a patent application requires detailed sketches of your invention. If you lack artistic ability, you can pay a patent illustrator to provide the drawings — or perhaps even a 3D rendering — for you.
What If You Aren't Ready to Apply for a Patent?
If your invention isn't yet perfect, or if for some other reason you are not yet ready to file a patent application, you can submit a provisional patent application. The provisional patent application is, so to speak, a placeholder. It enables you to label your invention as "patent pending," which serves as a warning to anyone who may be thinking about stealing your property.
A provisional patent application lasts for 12 months from the date you file for it. This year gives you time to fine-tune your invention and prepare it to be marketed.
As with a real patent application, the provisional application requires that you provide a description of your invention. However, you will not need as many details. Use language that is accurate, but not too specific because a provisional patent application will not cover anything you add to the invention after you file the application.
Keep in mind that provisional patents cannot be extended so you will need to file a regular patent application before the end of the 12-month provisional period.
Do You Need an Attorney to Get a Patent?
It is possible to get a patent without the help of a lawyer, but this can lead to problems.
Professional patent attorneys can help with research and with getting the best protection for an invention. Without legal guidance, you may end up spending thousands of dollars on an application that is ultimately rejected.
An attorney will take you through the application process and help you conquer any problems that come up after you submit the application.
Frequently Asked Questions
How much does a patent cost?
The cost of obtaining a patent depends on how complicated an invention is. Basic government filing fees are affordable, and they begin at $140 for small entities, which include individual inventors, small businesses, and universities. For larger businesses, the basic filing fee is $280. However, that basic filing fee is only the beginning of the costs associated with obtaining a patent.
Look at this table from the USPTO to learn more about government costs. You'll find that the price of filing for a patent depends on many things, including how you file, how many claims are on your application, and how many pages you application has.
For extremely simple inventions, you may have to pay from $5,000 to $7,000 in attorney fees. For complex inventions and software, attorney fees can reach more than $16,000. Paying a professional to do patent research can add thousands of dollars to the overall cost.
Why are attorney fees so high?
Patent attorneys often have knowledge that goes beyond the law. Many of them have scientific or engineering experience that relates to the field that their clients want to get patents in. They are highly skilled individuals who will put all the necessary time into guiding you through the patent process. The lawyer may even have to negotiate with the patent office on your behalf, which adds more time and expense.
You may be tempted to cut corners if your budget is limited, but paying for a qualified attorney and a thorough patent search can save you money and stress in the long-term.
How long does it take to obtain a patent?
After you file your application, do not expect a quick response from the USPTO. It can take a year or longer before you hear back, especially if there are a lot of inventions that are similar to yours. The USPTO will have to do extensive research.
When you do receive a response, it may not be an approval. You may be notified that your invention is not new enough in the light of prior art — that is to say, it has too much in common with previous inventions. The Patent Office may also tell you that you did not describe your invention in enough detail. If you receive this type of response, you and your attorney will have to work together to address the issue.
Steps to Getting a Patent
To obtain a patent, follow these steps:
- Work on your invention and document the entire process. Keep a notebook that includes diagrams, ideas, modifications, etc. Sign and date each entry. You may want to have a couple of reliable witnesses sign the entries as well.
- Confirm that you have an invention, not merely an idea. Begin patent research to confirm that your invention hasn't already been patented by someone else.
- Consider whether your invention is commercially viable. Perform market research in your industry to determine whether pursuing a patent is in your best financial interests.
- Hire a patent attorney. You may need a lawyer to help with more detailed research and guide you through the application process.
- Submit a provisional patent application. This gives you time to fine-tune your invention.
- Submit the application. A patent application requires many elements, including a specification that describes your invention and highlights its advantages. The specification includes:
An abstract, which is a summary of the information to follow.
Background information that describes what need your invention will fill.
A summary of your invention.
A detailed description of your invention.
A conclusion that shines a spotlight on the advantages your invention offers.
You will also need to submit claims with the application. These claims determine exactly what aspects of your invention you want to be protected. Along with the application, you can choose to submit a non-publication request, which will stop the USPTO from publishing the application 18 months after it is filed.
- Communicate with the USPTO. The Patent Office may ask questions about and raise objections to your application. You will have to work with your lawyer to respond to the Patent Office, whether they send you a non-final rejection or a final rejection. Each of these responses requires different steps if you wish to continue trying to get a patent.
You may choose to follow the above steps in a different order. For example, you could choose to hire an attorney before you start your research, or you could do market research before you choose to develop your idea into an invention.
The Patent Process
A patent gives you sole ownership of your invention for a limited amount of time, enabling you to get the most benefit possible from what you've created. The patent application process is complex, but you can get through it successfully if you hire a qualified attorney. The attorney will assist you every step of the way, from performing research to replying to objections from the USPTO.
Now that you have an overview of how to get a patent, you are ready to take measures to protect your invention. If you need help with getting 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.