Knowing how to patent a business is easier if you are familiar with the patent process in general. Patents get issued for several different types of intellectual property, including business methods. If your business method is novel, non-obvious, and meets a few other qualifications, you may be able to obtain a patent.

All About Patents

The United States Patent and Trademark Office (USPTO) issues patents for qualifying inventions. Basically, a patent is proof that you are the sole owner of an invention. Patents provide a variety of protections, and they can last as long as 20 years after the filing of the patent application.

The USPTO offers three different types of patents:

  1. Design Patents: Awarded for new and unique ornamental designs used for manufactured items.
  2. Plant Patents: Granted for new plant species.
  3. Utility Patents: Given to inventors who have created a new process, matter composition, machine, or manufacturing article, or who have improved an existing item.

For business owners, it's important to understand that patenting a business idea is not possible. You can, however, patent a business method in many cases. After you have been granted a patent, enforcing the patent will be your responsibility. The USPTO is only responsible for issuing patents, not enforcing them.

Lastly, you should be clear that patents are different than other forms of intellectual property protections:

  1. Copyrights
  2. Service marks
  3. Trademarks

Patenting a Business Model

The U.S. is one of the only countries that allows business owners to patent a method of doing business. Business patents have been available since 1988, following a Supreme Court decision.

If you're searching for a way to protect your business method, you must determine whether you should apply for a patent or if your method would be better protected as a trade secret. After filing your patent application, your business method would only have protection for 20 years. A trade secret, on the other hand, lasts in perpetuity, meaning your business method would have protection for as long as you want or need.

The nature of your business method can help you decide whether you should use a trade secret or patent. Some business methods are impossible to keep a secret, and in these situations, a patent is the better option.

Should you decide that a patent is the best way to protect your business method, drafting specifications for your method is the next action to take. You must fully describe your business method so that someone could use your method successfully by using only your description as a reference. This specification will be the backbone of your patent application.

After finishing your business method specification, you should visit the USPTO patent application database to do some research. Browse the database for business methods that may be similar to your own. Read their specifications to make sure that your method is unique enough to receive a patent. Searching the patent application database is commonly referred to as a prior art search.

An effective prior art search can take a few hours. If you find a business method with a specification that is similar to yours, your chances of obtaining a patent will be low. Business methods can only receive a patent if they are novel, meaning no other person has created a similar method. If you decide that your business method is patentable after a prior art search, you should describe its novelty in a legal claim. This claim should refer to both your specification and the results of your prior art search.

Next, you need a legal claim describing the usefulness of your business method. To prove a business method's usefulness, it must perform a specific and practical function. Patenting abstract ideas is not possible.

You also need a legal claim demonstrating the non-obviousness of your method, which is the third requirement of patentability. Non-obviousness basically means that your business took imagination to create and would not have been obvious to an expert in your field.

If your business method fulfills all three requirements of patentability, you should download, fill out, and file a patent application. In your application, you should include all three of your legal claims, as well as your specifications. You will also need to pay a filing fee.

If you need help with how to patent a business, 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, Menlo Ventures, and Airbnb.