Key Takeaways

  • A patent grants exclusive rights to an inventor, protecting their intellectual property from unauthorized use.
  • Before applying for a patent, ensure the invention meets eligibility criteria and conduct a thorough patent search.
  • Filing a provisional patent application can secure an early priority date while you finalize your invention.
  • The patent process can be complex, and professional legal assistance can improve the chances of success.
  • The USPTO offers different types of patents, including utility, design, and plant patents.
  • Costs for obtaining a patent vary, from USPTO filing fees to attorney expenses, making budgeting crucial.
  • Understanding patent enforcement and licensing can help inventors maximize the commercial potential of their patents.

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).

Understanding Patent Eligibility

Before applying for a patent, it’s critical to ensure your invention meets the legal requirements set by the USPTO. To be eligible for a patent, an invention must be:

  • Novel – It must be new and not previously disclosed in prior art (existing patents, publications, or products).
  • Useful – The invention must have a functional purpose and provide a tangible benefit.
  • Non-obvious – It should not be an obvious improvement over existing technology to someone skilled in the field.

If your invention meets these criteria, you can proceed with a patent application.

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.

The Importance of a Non-Disclosure Agreement (NDA)

Before discussing your invention with potential investors, manufacturers, or developers, consider using a non-disclosure agreement (NDA). An NDA legally binds the receiving party from sharing or using the disclosed information without permission. Key elements of an NDA include:

  • Identification of confidential information
  • Duration of confidentiality obligations
  • Consequences for breach of agreement

Using an NDA can help prevent idea theft before securing patent protection.

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.

Steps to Getting a Patent

Follow these steps to secure a patent for your invention:

  1. Develop and Document Your Invention – Keep a detailed record of your invention process, including sketches, modifications, and notes. Sign and date each entry, and consider having witnesses verify your documentation.
  2. Confirm That You Have a Patentable Invention – Ensure that your idea is an actual invention, not just a concept. Conduct preliminary research to check if a similar patent already exists.
  3. Assess Commercial Viability – Determine whether patenting your invention is financially worthwhile by conducting market research within your industry.
  4. Consult a Patent Attorney – A lawyer can help refine your research, provide legal advice, and guide you through the complex patent application process.
  5. File a Provisional Patent Application – This step provides temporary protection while you continue developing and improving your invention.
  6. Submit the Formal Patent Application – Your application must include:
    • Abstract – A brief summary of your invention.
    • Background Information – The problem your invention addresses.
    • Summary of the Invention – An overview of how your invention works.
    • Detailed Description – A comprehensive explanation of your invention.
    • Conclusion – Highlights the key advantages and benefits of your invention.
  7. Communicate with the USPTO – The Patent Office may have questions or objections regarding your application. Work with your attorney to respond appropriately, whether addressing a non-final or final rejection.

While these steps typically follow this order, you may adjust them based on your needs. For example, you might hire an attorney early in the process or conduct market research before fully developing your idea.

Common Mistakes to Avoid in the Patent Process

The patent application process can be complex, and mistakes may lead to costly delays or rejections. Common pitfalls include:

  1. Insufficient Prior Art Search – Failing to research existing patents can lead to rejection if your invention is too similar to prior inventions.
  2. Inadequate Description – A vague or poorly detailed patent application can weaken protection and make it easier for competitors to work around your patent.
  3. Not Filing a Provisional Patent First – If you’re still refining your invention, a provisional patent can establish an early filing date while you finalize details.
  4. DIY Patent Filing Without Expertise – Filing without a patent attorney can increase the risk of mistakes, as legal technicalities can be challenging to navigate.
  5. Missing Deadlines – The patent process involves strict deadlines, such as converting a provisional patent to a non-provisional application within 12 months.

By avoiding these mistakes, you improve the likelihood of a successful patent approval.

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.

What Happens After You File a Patent Application?

Once a patent application is submitted, the USPTO assigns it to an examiner who reviews the claims and prior art. The process includes:

  1. Patent Office Review – The examiner may issue an Office Action, which requires responses to questions or rejections.
  2. Revisions and Amendments – If the examiner rejects the application, you may need to revise claims or argue their validity.
  3. Patent Approval or Appeal – If approved, the patent is granted. If denied, you may appeal the decision to the Patent Trial and Appeal Board (PTAB).

The review process can take 1-3 years, depending on complexity and backlog.

Frequently Asked Questions

1. How long does it take to get a patent?

The patent process typically takes 1-3 years from application to approval, depending on the type of patent and USPTO backlog.

2. What is the difference between a provisional and a non-provisional patent?

A provisional patent is a temporary filing that secures an early priority date but does not grant enforceable rights. A non-provisional patent undergoes full examination and can lead to a granted patent.

3. How much does it cost to get a patent?

Patent costs vary based on complexity. USPTO filing fees range from $60 to $300 for small entities, while legal and research costs can range from $5,000 to $15,000 or more.

4. Can I patent an idea?

No, you cannot patent an idea alone. You must have a detailed description, including how the invention works and its practical applications.

5. Do I need a lawyer to file a patent?

While it is possible to file a patent independently, hiring a patent attorney significantly increases the chances of approval by ensuring compliance with USPTO requirements.

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.