How do I Patent a Product Idea?

You cannot only patent a product idea. You need to be able to be able to explain exactly how your idea would work as an invention and how it is different from everything else that already exists. Once you are ready, getting the patent involves documenting your concept, verifying that it is patentable and commercially worthwhile, doing a patent search to verify no one else got there first, and filing your patent application.

No Patent Protection for Ideas Alone

How many times have you thought of something that might make a great product or invention?  If you described your idea to a friend or family member chances are good they would tell you “hey, you should get a patent on that.” Or maybe, you’ve seen a commercial on late night TV where someone offers to help you turn an idea into millions of dollars. What most people don’t know is that you can’t patent just an idea, no matter how good it is. Before a patent can be granted, the idea needs to be matured into an invention.

Maturing an idea into an invention means thinking through exactly how it would work and then describing it at a level of detail that lets others understand it. A good way to think about it is that in order to qualify as an invention, an engineer would need to be able to take your description and use it to build what you had in mind.  In addition to a written description, drawings and three-dimensional renderings are very helpful in maturing an idea to an invention. Patent illustrators can help with creating drawings based on your written and/or verbal description, often for very reasonable fees.

You don’t need to have a physical prototype of your invention for the patent application, although you should create one to be sure your invention works. A prototype can also be very helpful in helping potential investors to get on board. Many investors will not even consider investing in a product until it is at the prototype stage. Product development companies can help with creating prototypes.

Documenting Your Concept

You may have heard of the “poor man’s patent” in which you write down your idea, date the letter, and send it to yourself by U.S. mail as proof that you had the idea as of a specific date. Unfortunately, a poor man’s patent generally has little or no value against a formal patent in a dispute.

Despite that, keeping documentation from the start actually is very important for protecting your idea. While you will want to follow through with a patent application, these documents will help in the event anyone claims you stole the concept by proving the idea is your original thought process from the very beginning.

As soon as your idea occurs to you, start a notebook. Record as much as possible about your idea and the ways in which it evolves as you think further about it. Write down how you think you will make your product, and how you think you will market it. Note any conversations you have with others about the idea, including names and dates. Include diagrams and sketches wherever possible. Sign and date each entry and if possible have a witness sign and date it too.

As you get further along in the process these notes will form a good starting point for your patent application written materials and drawings.

Verifying Patentability

Once you have thought through your idea and know how you would turn it into reality, you’ll need to verify that it is patentable. You’ll need to verify that your idea works and that no one else already has a patent for the same idea.

The process of maturing the idea into an invention has probably already helped you to verify that the idea works, so the next step is to ensure that no one else already has the patent.

When you first had the idea you probably checked online and in stores to see if something similar was already for sale. If you haven’t done that yet, do it at this stage. If you find a substantially similar product already for sale, the time and effort to patent your product and bring it to market probably does not make sense.

On the other hand, don’t make the mistake of assuming you can proceed simply because you don’t see a similar product on the market. It is quite common for an invention to be patented but never developed or sold. It is also possible for there to be a patent that would cover your product and for the product to only be currently sold in a different market—possibly overseas.

So, if you pass the first hurdle of not finding a competing product already for sale, the next step is to conduct a patent search to see if there are patents that are active and that cover your idea. Most people start the patent search process by performing searches themselves in the U.S. Patent and Trademark Office (USPTO) database. This is a good idea for these initial searches, since it is free for you to perform searches yourself and if you come up with an identical patented concept, you will know you can’t proceed with a patent and won’t have spent a lot of money to find that out. The USPTO has staff who can assist inventors with understanding the search process.

If your self-performed searches do not find a competing patent, you are not yet out of the woods. The USPTO database is massive and the logic by which it is organized is complex. Even with staff assistance from the USPTO, it is common for searchers new to the process to miss a patent for an idea identical to theirs, simply by not knowing what terms to search and in which fields. So before proceeding further, invest in a professional patent search with a written opinion. Patent searching is an art. Your searcher will be able to provide greater assurance that your invention is in fact unique and will also be able to call your attention to related patents you’ll want to reference in your application as part of explaining how your invention differs from others. You’ll use this search report in your patent application, so it is money well spent.

Verifying Commercial Potential

Once you have an invention you are sure will work and have satisfied yourself that no prior competing patents exist, the next step is to verify that your invention has the potential to make money. Statistics show that more than 95% of patents never make money for the inventor. So, before you invest the substantial costs required for filing fees, attorneys, and other professionals to support your patent application, it is a good idea to be sure your invention can be profitable.

Do some preliminary research of your target market. Who will buy this product?  How many potential buyers are there and how many other product options do they have?  What cost will the market bear?  Can you make a reasonable profit after the costs of the patent, product development, and production?

It can be a good idea to talk with potential investors or business consultants at this stage to get an independent sense of whether they see potential in the product-- but be very careful in such discussions, since your invention does not yet have patent protection and is susceptible to being stolen. A strong confidentiality agreement (sometimes called a non-disclosure agreement) should be signed before the discussion takes place.

You can also consider joining a local or online inventors group. These groups often bounce ideas off one another and trade information about resources and support. Check the confidentiality rules of the group before sharing too much detail about your concept.

Filing the Application

When you have satisfied yourself that your idea is workable, patentable and commercially viable, it’s time to begin preparing your application to file with the USPTO.

There are two basic types of patent applications small businesses typically use, the provisional patent application and the non-provisional patent application.

Provisional Patents

A provisional patent application, or PPA, allows you to protect your invention with “patent pending” status for twelve months while you continue research and development, or seeking investors. PPAs do not require nearly as much work as full-blown non-provisional patent applications and the examination by the USPTO is focused on whether the filing meets administrative requirements rather than on whether the invention itself is patentable. To file a PPA you need to complete a cover sheet and attach a detailed description of the invention and how it would be made, and at least an informal drawing. Fees to file a PPA are

  • $65 for micro-entities
  • $130 for small businesses
  • $260 for large entities

Many inventors file a PPA when they are at the investor stage to protect the invention before disclosing too much about it to third parties.

Be careful in filing your provisional application. While you can add to the details and materials in your application at the next stage of the process, you cannot materially change the invention itself without going back to square one so be sure you are happy with the concept and how it works before you file the PPA.

Non-Provisional Patents

A non-provisional patent application (also known as a Regular Patent Application or RPA) is the full-blown application that starts the formal examination process by USPTO. These are lengthy applications containing substantial detail and generally many drawings of the invention as well as references to other patents and how this invention differs from those other inventions.

There is no requirement that you use an attorney for your RPA and the USPTO does have assistance available for inventors who handle the application process on their own. However, it is a complex process with high risks—a mistake can mean a rejected application or a patent that doesn’t fully protect your invention. Many people opt to invest in retaining the services of a patent attorney to be sure they are provided as much protection as possible and the application is completed correctly.

Managing the Costs With a Two Step Process

Some inventors manage the costs of the patent application by using a two-step process.

At step one, the inventor will work on the concept on his or her own or with moderate attorney assistance, developing the idea into an invention, keeping notes, performing patent searches and commercial research, and eventually filing for a provisional patent.

At step two, with the provisional patent in hand, the inventor can go to investors with the idea, marked “patent pending” and seek commitments for funding. This funding will be used to cover the costs of attorneys, patent illustrators and other services to complete the RPA, as well as funding development and go-to-market costs for the product. In return, the investors take a percentage of sales. In this way inventors without the resources to front the costs of an RPA and product development can obtain the funds they need in return for a share of their future profits.

If you need help patenting a product idea, 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.