How Do I Patent an Invention?

Learning how to patent an invention as part of how to patent an idea can be a tough process, but an original invention that can be clearly described qualifies for patent protection. Average prices for a simple mechanical patent range from $10,000 to $20,000. Because a patent is such a large investment, you should follow the correct process to make sure your application is approved and your invention is protected.

Reasons to Get a Patent

  • It ensures that others can't make money from your invention. You can seek damages from any person or business that infringes on your patent. Similarly, the exclusive rights your patent gives also means you can't infringe on the copyright of others.
  • It helps you profit from your invention. Since you occupy your own space in your industry, you can make an unlimited amount of money from your invention. This is essential for growing a successful business.
  • It's a good marketing tool. Advertising built around patent status is timeless and effective.
  • It can give your company stability. In time, a patented invention can become a maintenance brand, one that generates a modest but reliable income stream without requiring a lot of input. This enables you to focus attention on creating new inventions.
  • It opens up professional opportunities. Patents help you access inventor conferences and networking opportunities that can help your business.

Develop Your Idea Early for a Patent

Many inventors delay the patent process because they feel they don't have an invention yet. However, many inventors with only an idea actually have an invention worth protecting or are very close to one. Until an idea becomes an invention, it can't be patented. It also shouldn't be promoted or shared with companies without a confidentiality agreement, as it isn't protected yet. But most ideas can be easily developed to become inventions for patents. Once you can describe your idea with specific details, it's considered an invention.

  • Create a document describing your invention. There are inventor's journals for this task, but any bound notebook with numbered, fixed pages will work. Write down what you know about your invention and expand upon it with clear, specific details. Note down:
    • What your invention is
    • How it works
    • How to make it
    • How you'll promote it

The document should be sufficiently detailed such that anyone familiar with your industry could make and use your invention after reading your notes. You will need to describe all characteristics of your invention to receive a patent. Date and sign this document and get a witness to do the same.

  • Add drawings. Draw sketches yourself or hire a professional. 3D renderings are particularly impressive. Experts say quality patent drawings are the best and most affordable way to bulk up patent applications.
  • Consider the commercial potential. There's no point investing time and money to patent an invention that won't sell. Getting a patent costs around $1,500 in filing fees alone. Legal fees, professional drawings, and other expenses further inflate the price. Conduct preliminary market research to make sure people will want to buy your invention, check out your competitors to assess whether you can interest their customers, and calculate the costs to determine whether you could make and distribute your invention cheaply enough to sell it for a reasonable price.
  • Search for your invention. This will help you answer whether:
    • You can get a patent (Patentability Opinion)
    • You can make and sell your invention without infringing on another patent (Right to Use Opinion)

Search the USPTO, foreign patent organizations, and other websites for duplicate or similar patents, as this will let you know whether your invention is original, as it must be to qualify for a patent. A librarian can also help you search early patents offline at the Patent and Trademark Depository Library. Conduct a "prior art search" to see whether similar, non-patented inventions are currently for sale online. Prior art describes any inventions that are known publicly and can't be patented. Scientific and technical journals are also good resources.

  • Pay for a professional search. A thorough, professional search is likely to unearth duplicate designs you haven't found. Most patent search services charge around $500, but prices depend on:
    • Your invention's technological complexity
    • How thorough the search is
    • The search company's pricing structure
  • Refine your idea, if needed. You don't need to give up if your search finds similar inventions. Instead you should develop your idea and make sure it improves on or does things differently than the inventions you've found.
  • Do further research on the USPTO website. This website has a wealth of information about patents that will help prepare you for the patent application process.

Get a Provisional Patent

A provisional patent protects your invention for 12 months, just as a patent would. However, the application is much simpler and more affordable. Once approved, a provisional patent application (PPA) gives your invention patent pending status. To file a PPA, you need:

  • A detailed description of your invention. This should explain how to make and use the invention.
  • A drawing of the invention. This doesn't need to be formal or refined.
  • The filing fee. This is $65 for micro-entities, $130 for small businesses, and $260 for large companies.

A provisional patent is ideal for protecting an invention's concept during its development. An inventor can change parts of the invention before obtaining a patent without penalty. Amendment fees apply for every change after obtaining a full patent.

Venture capital firms and lenders will take an invention with patent-pending status more seriously.

After filing an application, you have inchoate rights, or the right to show you've carved out your own niche in your industry. This can make your marketing more persuasive.

Further Develop Your Invention

After filing for a provisional patent, you have 12 months to file a regular patent application (RPA). You should further develop your invention during this time by doing the following:

  • Getting funding. Developing any invention requires capital, so start meeting investors and lenders now for the money you need to help your invention grow.
  • Collaborating with key people and groups. A number of people and organizations may be able to help you develop your invention. Make sure your contacts sign a confidentiality agreement before you reveal your invention's details. The following are good resources for developing your invention before patenting it:
    • Product development companies
    • Online tools such as the Invent & Patent System
    • Other related patents. You can find related patents by searching the United States Patents and Trademark's Office (USPTO) website.
    • Other professionals in your field
    • College or graduate students. Post on university bulletin boards or contact the school to find good candidates.
    • Local inventors groups. These groups often meet in person and online to brainstorm ideas and offer advice. Members will help you avoid unhelpful businesses and websites and stop you from making common mistakes. Patent attorneys even give speeches at some groups' meetings.
    • Credible licensing agents. These professionals work with reputable companies wanting to license or acquire new inventions.
    • Family and friends. You might be surprised who you already know that can help you. A simple, non-threatening confidentiality agreement is still important when working with loved ones.

Note: You don't need to add the names of the people who helped you refine your invention to your patent. Unless you take on a partner, you should be listed as the only inventor.

  • Conducting further market research. A provisional patent helps protect your idea while you conduct deeper market research. You can conduct market research by:
    • Asking your family members and friends for their opinions, but remember they may be biased towards you.
    • Getting an evaluation from a university that uses the Preliminary Invention Evaluation System.
    • Talking to chain store buyers you trust.
    • Getting a market study from a credible marketing firm. Inventors' Digest magazine lists many credible firms.
    • Asking a mentor or other professionals, including online contacts, for their opinions.
  • Making a working prototype. This may alert you to design flaws or inspire you to add more features and will give you something tangible to show licensees and inventors. You can use a kit or book to help you. Prototype companies can also create prototypes for inventors that aren't comfortable making their own. If your invention is too large or complex for 3D modeling, create a computer-animated virtual prototype instead.
  • Adding to your original invention document with notes and diagrams. Keep all of your originals to show your invention's development. Take photographs of all the prototypes you make, even if they appear unrefined. Keep receipts for things you've bought relating to your invention. Sign and date every entry you make and get the signatures of two witnesses so that you have a notarized diary of your invention process.
  • Creating a business plan detailing what you'll do with your patented invention. Will you make and sell it yourself or license it? Inventors typically only receive two to five percent of the sales in royalties, but they don't face the same financial burden of inventors running their own business. Creative types often do best generating ideas for other people to make, while focused, organized, and goal-oriented inventors often excel making their own inventions. This could mean taking a hands-on role or employing third-parties to ship the goods. If you want to take a hands-on role when your invention's in the marketplace, you should incorporate as a "small entity." This lets you raise investment capital and offers business protection without the formal demands of a full corporation.

Reasons to Use Confidentiality Agreements

There are two types of confidentiality agreements: one-sided or unilateral confidentiality agreements which protect only your information, and mutual confidentiality agreements which protect both parties. Both types are valuable for people with inventions seeking patents.

According to the American Invents Act of 2013, an invention must be a trade secret to receive a patent. If your invention's details are revealed, your patent application is likely to be rejected. A confidentiality agreement helps your invention's details stay private. If it's broken, you can sue and claim damages.

Confidentiality agreements can also prevent anyone from profiting from your invention, which is especially important when dealing with business contacts with the means to develop your invention as their own.

Steps to Filing a Regular Patent Application

Filing a regular patent application (RPA) commences the USPTO examination process, which will hopefully lead to your invention receiving a patent. This is sometimes called a non-provisional patent application.

There are three different patent options:

  • A utility patent: For manufactured inventions, production methods, chemical or DNA sequences or their usage methods, and genetically engineered goods
  • A plant patent: For new plants invented or discovered, then propagated
  • A design patent: For the look of useful products, like handbags or toys

Utility and plant patents are effective for up to 20 years from the filing date. Design patents are valid for 14 years from their issue date.

No matter which type you choose, your patent should include all the details your competitors might want to copy, including the best and most affordable ways to bring your invention's benefits to consumers. You should file your patent with the USPTO.

Filed patents have a patent pending status until they're approved or rejected.

Mistakes to Avoid

There are a number of mistakes inventors make that jeopardize their patent application. These include:

  • Selling the invention a year or more before applying for a patent. According to the America Invents Act of 2013, inventors must file a provisional or nonprovisional patent agreement within 12 months of their first sale. Once this grace period elapses, it's impossible to ever secure a U.S. patent.
  • Publicly using the invention. Similarly, inventors must file a U.S. provisional or non-provisional patent agreement within 12 months of the first time their invention was used publicly. Many international countries have no grace period at all, so using your invention publicly any time before filing an application can jeopardize foreign patents.
  • Relying on the grace period. While the U.S. has a 12-month grace period, it's best not to rely on it. Instead, file your patent long before you want to use or sell your invention. If you've already started to buy or sell, you'll have less time to file a valid patent application.
  • Filing a vague provisional patent application. Provisional patent applications follow no set format. They need only a cover letter and a description of the invention. However, this description should be as thorough as any non-provisional patent application. Many non-legal firms offer cheap provisional patent services, and the applications they produce often lack the detail required by the USPTO. These applications are usually rejected, often after people have publicly used or sold their inventions, which can compromise their chances of ever obtaining a patent.
  • Skimping on searches. You should always search online for inventions similar to your own, both through patent searches such as the USPTO and search engines. Not every invention is patented, so you shouldn't rely on a patent search to identify all competitors. It's also important to get a professional patent search, which will often reveal similar patents an independent search didn't. Without thorough searching, it's easy to unknowingly file a patent for a duplicate invention.

Steps After You File

  • The USPTO performs an independent patent search and sends you an Office Action. An Office Action is the USPTO's opinion about whether your invention is suitable for patenting. Most first Office Actions see patent application's rejected. If yours is rejected, a patent attorney will file a response arguing your case. This response might include claim amendments to make your invention more patentable.
  • The USPTO responds. Hopefully you'll get a Notice of Allowance which says your invention will get a patent. Alternatively, you could get a Final Office Action which says your appeal wasn't successful and your patent has been rejected again. You can then file another response or Request for Continued Examination.
  • You pay the Government Issue Fee. Once you receive a Notice of Allowance, you must pay the Government Issue Fee. You'lll usually get your patent one to three months after the USPTO receives its money.

Frequently Asked Questions

  • Do I need a lawyer?

Technically, you can file a patent without a lawyer's help. According to federal law, USPTO patent examiners must help inventors applying for patents without legal assistance. However, the experience and knowledge patent lawyers possess can mean the difference between getting your patent or being rejected. Filing a patent application is very difficult, even for experienced inventors, so using a patent attorney gives your application the best chance for approval.

Few inventions are truly original. One mattress, for example, always risks infringing on another mattress's patent. Some inventions at first seem "obvious to one skilled in the art." Lawyers can identify potential problems and offer a Non-Infringement Opinion. They also know how to emphasize an invention's unique qualities and make them seem less obvious in the application's claims section to get patent approval. They can also issue a Validity Opinion, telling you whether a potential problem patent is valid.

A patent attorney will make sure your patent is strong enough to adequately protect your invention. If you want to save money, write your application and get a patent attorney to review it before you submit it.

Your patent attorney will send you a draft copy of your patent application before submitting it. Ask any questions you have and make suggestions soon after receiving the draft.

Your patent attorney is also useful after your application is filed. If it's rejected, your lawyer can prosecute for you and amend your application until it's approved.

  • What do I bring to the patent attorney's office?

Take your inventor's journal, prototype, drawings, and any other notes when you meet with the attorneys on your list. This information will help them decide if they want to work with you.

  • How niche should my patent be?

There's a perception that general or broad-ranging patents are usually more profitable than niche ones. However, this isn't true. Figure out the specific thing you're good at and develop that strength, without worrying about the impact on your profits.

  • How are patents different from other forms of intellectual property protection such as copyrights, trademarks, and trade secrets?

Patents stop others in the U.S. from using, producing, or selling inventions. Copyrights similarly protect artistic works such as novels, songs, and pieces of art. Trademarks serve the same function for names and symbols. These symbols may be logos, design elements, or even sounds. All these things protect intellectual property, or the ownership of ideas. They protect different types of things stemming from original ideas.

  • I'm not sure I want to make my invention. Should I still patent it?

Patents are always worth pursuing, as they protect your invention. Many people that patent inventions don't make them. Instead, they pursue royalties from licensing their invention. Consider how much your invention is worth before licensing it. You can do this using cost-plus (considering fixed and variable costs and your ideal profit margin) or demand price (considering the demand for your invention in the market).

  • How can I speed up my patent application?

Electronic applications are typically processed faster than paper ones, so when time is an issue, you should apply online. Taking the right steps to search for prior art and submitting a complete, thorough application can also reduce delays. You can check on the status of your patent application any time after you apply.

If you need help with patenting an invention, you can post your question or concer 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.