How to Obtain a Patent

Learning how to obtain a patent is entirely possible without hiring an attorney, you simply need to know how the process works and what costs are involved.

Filing a Patent Without an Attorney

Just like learning any new skill, such as installing a tile floor or playing the guitar, you can figure out the process with a little bit of research. You might be surprised by the easy of certain steps, and perhaps feel a little stuck by others, but rest assured that you can figure it out. Don't overwhelm yourself by biting off more than you can chew and you'll soon master the necessary skills to file a patent on your own.

Steps to Filing a Patent Application

The U.S. Patent and Trademark Office is responsible for issuing patents and trademarks. The agency provides rules regarding how to fill out your patent application, which can serve as helpful guidelines for completing the process. Pay attention to the details and you can have the best chances for success.

Keep a Careful Record of Your Invention

The best way to start your patent application is to keep a notebook devoted solely to all the details of your invention. Here you can describe all parts of it fully, and include diagrams or illustrations of the process. Also include how you discovered your idea. If applicable, consider building a prototype in order to test out your invention. No matter how many tries it takes, keep records of all your tests, including the date and signatures from two witnesses in addition to your own.

Make Sure Your Invention Qualifies for Patent Protection

Patents won't be issued based solely on an idea. Instead, you should demonstrate the way your invention actually works. It must also be a completely new idea with an important difference from any related idea that's already been produced. Also, you can't sell your invention before you apply for a patent, or market it for exposure.

Assess the Commercial Potential of Your Invention

Only apply for a patent if you intend to use it as part of a business venture. It's an extremely expensive process even without the help of a patent attorney. In fact, fees alone can total $1,500 when trying to get a USPTO-approved patent. So before you get too far into the weeds with your patent application, perform a market analysis to determine if your invention truly has commercial potential.

Do a Thorough Patent Search

If you haven't already, become an expert in your field to confirm that your patent truly is unique. You can get started by searching for existing patents online at the USPTO to review existing ideas. You should also figure out what kind of patent you need in order to submit the correct application. If earlier developments do exist in your field, it's your job to clearly state the improvements made by your idea.

Prepare and File an Application with the USPTO

The Constitution gave America's founding fathers the right grant citizen’s patents. In order to push inventors to continuing to innovate, the government only issues patents with a time limit. Rather than coming up with new ideas, inventors could be more tied up with keeping others from stealing their ideas, hence the time limit. Patent applications continue to increase along with the growth of technology. The USPTO reviewed well over 485,000 patents in 2008 and granted over 185,000 the same year.

When you apply for a patent, you'll work with a single patent examiner the entire time. This person will have some type of science or engineering background. There are three different types of patents:

  1. Utility patent: this is the most sought after type of patent and applies to an invention with a specific function.
  2. Design patent: this patent deals with any non-functional portion of a product or invention, such as a unique surface or shape.
  3. Plant patents: this deals with any invention involving a plant that reproduces asexually.

Know that you'll very likely be denied the first time you apply for a patent. Instead, it's common for your examiner to provide you with a non-final rejection. You can then amend your claims or respond to the initial verdict to argue your case. If you don't receive a patent after your appeal, you can submit an after-final argument.

Alternatively, you can also proceed with a continuation application. This allows you to begin the process again with a new claim. You'll need to send in your application paperwork again and you'll also receive another serial number as well as a new filing date.

You also have the opportunity to file a request for continuing examination. In this scenario, you send an additional amendment rather than resubmitting your specification. You can also go to the Board of Appeals and Patent Interferences (BAPI) with an appeal. If you choose this route, you must truly believe that your invention can stand more scrutiny due to its value. On the plus side, during this procedure you are allowed to profit off your invention as well as license it out.

Obtaining Patent Cost

Patent costs can vary, in part because of the kind of technology that may be involved in your application. While a successful patent requires a new invention compared to previous products, these definitions are becoming increasingly complex with new laws.

Ongoing verdicts from the U.S. Court of Appeals and even the Supreme Court have been paired with increased regulations from the USPTO to make it extremely difficult to write a satisfying description or claims set. While difficult, getting a patent is still certainly possible, and in some ways even easier than years before. But it's impossible to avoid the expensive cost that comes along with getting a patent.

So first let's talk about all the related costs that come along with submitting an application for a patent. The first factor is how complex your invention is. If your field is extremely complex, similar existing patents are sure to include heavy text and lots of drawings. Software products, for example, are extremely complex and courts have mandated an increased amount of technical detail to get a patent.

Small entities can expect to pay $730 for a filing fee, which is the most common type of patent applicant, including an individual inventor. A micro entity can expect at least a $400 filing charge. However, these fees often increase as you have more claims in your application. So you can see how a very complex invention would cost more than a simple one.

Another cost involved with a patent application is for professional drawings, which can set you back between $300 and $500. If your invention is a complex device, you could even end up spending between $2,500 and $3,000. You'll probably pay anywhere from $100 to $125 per page, so that can quickly add up if you need a lot of technical illustrations.

Your costs also relates to your intentions for the patent and your potential opportunities are once you take it to market. If you have a realistic market, you're more likely to spend more money because you want to ensure your patent doesn't get encroached upon by a competitor. And like so many things in life, cost often reflects the quality. So while you could get a generic attorney to write a relatively cheap patent application on your behalf, it may be worth your while (depending on your business potential) to hire a specialist and spend as much as $20,000.

Strong patents involve more claims and technical disclosures. They also describe variations and alternatives so that you truly cover all your bases with your patent. All of this requires more time from your attorney and your patent examiner. When it comes to intellectual property, the strength of your claims -- and consequently, your patent -- serves as the bedrock of your company, so you might want to invest more effort and money. In a best case scenario, taking these precautions early on can result in more funding from investors later on.

Other industries like biotechnology have limited tangible assets. It's common for startup companies to double typical patent budgets in order to successfully get a comprehensive patent on their product.

In some cases, however, businesses try to find ways to get around these expensive costs for patent applications. One of the first mistakes they make is skipping out on the search for existing patents. In fact, if you choose to neglect this important step and hire a lawyer later on in the process, you'll likely have to sign an agreement stating that you understand the risks of not doing your research and that you acknowledge you were notified of these dangers by the attorney.

Conducting a thorough patent search can save you an exorbitant amount of time and money in the long run because you could very well be wasting your time.

At the same time, even the most thorough patent search doesn't guarantee a clear path. In fact, most patent searches only offer 80% confidence that they are comprehensive. To reach 100% would simply be cost prohibitive, potentially reaching millions of dollars to confirm the results to such a high degree.

Plus, any invention from a patent application that was initially filed in the last year and a half are by law not published -- so you wouldn't be able to find them anyway. An absolutely comprehensive patent search is not only unrealistic, it's also impossible.

Still, you can still perform a fair amount of due diligence and use that information to better inform your patent application process and what innovations have already been created. You need this information so you can position your own invention as unique.

You can certainly start off with your own preliminary research, but it's better to work with a professional searcher when you're seriously preparing your patent application. These experts typically work directly with a patent attorney and can very realistically find more results (including pending applications) than if you did it all on your own.

For these services, you can expect to pay anywhere between $1,000 and $3,000, which includes the professional search and a written opinion from an attorney. The variables include:

  • How much written analysis you want from the lawyer
  • How complex the invention is
  • How much prior art has been discovered and should be considered in the application

Truly, your written analysis and in-depth patent search will almost always end up being money well spent. This is not the place to start cutting corners if you're serious about obtaining a patent. Your search either demonstrates the case for your own patent applications, or saves you money in the long run by discovering that your invention actually is not unique.

If you need help learning more about how to obtain a patent, you can post your legal need 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, Stripe, and Twilio.