Key Takeaways

  • A patent gives you exclusive rights to your invention, preventing others from making, selling, or profiting from it without permission.
  • To patent something, your invention must be new, useful, and non-obvious.
  • The patenting process involves documenting your invention, performing a patent search, filing a provisional or non-provisional application, and working with a USPTO examiner.
  • Choosing the correct type of patent (utility, design, or plant) is essential for proper protection.
  • Patents can attract investors and create licensing opportunities, but they require significant costs and ongoing maintenance fees.
  • Alternatives such as trade secrets or trademarks may be more appropriate depending on your goals.

Patents: What Are They?

Understanding how to patent something is a part of knowing how to patent an idea. Patents are legal documents that describe, illustrate, and register your original invention, design, or discovery. There are four types of patents:

  • Utility Patents: These cover things like machines, processes, and systems.
  • Design Patents: These cover manufacturer designs and the way things look.
  • Plant Patents: These cover plant discoveries, developments, or reproductions.
  • Provisional Patents: These are preliminary patents that create a record of your idea while you work to develop it. They also allow you to claim "patent pending" status. You can convert this to a full utility, design, or plant patent within one year of filing.

Why Are Patents Important?

Patents give you exclusive rights to your designs and inventions. They prevent others from making or selling your invention or design. Patents also give you the right to sue anyone who tries to profit from your idea.

Steps to Patent Something

1. Document Your Invention or Design

Start by keeping a record of every step of your invention or design process. Write out ideas and explanations in a notebook. Add modifications or new ideas as they come up. Include diagrams and drawings, if possible. If you build a test product, document that too. Sign and date every entry, and consider having a witness sign, too.

2. Determine Whether Your Invention Is Original and Useful

To be eligible for a patent, your invention must be unique and useful. If your invention already exists or is obvious to most people, you might need to amend your invention.

3. Understand Your Invention or Design's Profit Potential

Applying for a patent can be expensive. Before you begin the process, understand how much you could make. Assess the costs and create a business plan to find out the profit potential.

4. Decide Whether to Hire a Patent Attorney

You can apply for a patent yourself, but hiring an attorney can make the process smoother. If you plan to file a complex patent application, consider hiring a lawyer to help.

5. Determine What Type of Patent You Need

Find out whether you need to file a utility, design, or plant patent. This affects the process you'll use and the fees you'll pay.

6. Complete a Patent Search

Do a patent search to find out if similar products or designs already exist.

7. File a Provisional Patent Application

The patent application process can take years. During that time, someone else could begin the patent process for a similar device or design. Protect your invention by filing a provisional patent application.

8. File a Patent Application With the USPTO

Write an abstract, background, summary, and description for your patent. Include the drawings, and make sure to reference them in the application's written components. When you're ready, file your patent application online, by mail, or by fax and pay the fees.

9. Work Closely With Your Patent Examiner

Your patent application case will be assigned to a patent examiner. Communicate with him or her and respond to any correspondence as soon as possible.

10. Amend or Appeal Your Application if Necessary

If your application isn't approved on the first try, make any changes, and resubmit it. You can file an official appeal with the Patent Trial and Appeal Board after two rejections.

Common Mistakes to Avoid When Patenting

When learning how to patent something, inventors often make costly mistakes that can delay or prevent approval. Some common errors include:

  • Filing too early or too late: Filing before your invention is fully developed can lead to incomplete claims, while filing too late risks others beating you to it.
  • Failing to conduct a thorough prior art search: Overlooking existing patents can result in rejection or wasted resources.
  • Not keeping detailed records: Lacking proper documentation of your invention process weakens your claim of originality.
  • Improperly drafting claims: Vague or overly broad claims are frequently rejected by examiners.
  • Skipping professional help: While filing pro se (on your own) is allowed, patent attorneys and agents help ensure your application meets USPTO requirements.

Reasons to Consider Patenting Something

If you want to manufacture or sell a product or design, filing a patent could be an important part of your business plan.

  • You need to secure exclusive rights for a general or a specific invention

Patents can cover either general or specific designs or inventions. The type you pursue should match your business plan and help you profit as much as possible. If you plan to make several different products, remember you can file as many patents as needed. If you don't want your competition to know what you're doing, you might file a nonpublication request. This applies to provisional patents and can help keep things quiet until your application is approved.

  • You need to attract investors

If you need investor funding to bring your invention to market, you might need to get a patent first. Filing a patent shows investors that you've done work to secure profits. A patent also shows you're serious about your business.

Alternatives to Patents

In some cases, a patent may not be the best form of protection. Depending on your invention or business goals, you may want to consider alternatives such as:

  • Trade Secrets: Useful for processes, formulas, or algorithms that can be kept confidential (e.g., Coca-Cola’s recipe). They avoid disclosure but offer no protection if independently discovered.
  • Trademarks: Protect logos, brand names, and slogans rather than inventions.
  • Copyrights: Apply to creative works like software code, books, or artwork.
  • Defensive Publication: Publicly disclosing your invention to prevent others from patenting it, while forgoing exclusive rights.

Reasons to Consider Not Patenting Something

Even if you have a good idea, filing a patent application isn't always the right choice.

  • An idea isn't enough

If your invention is still just an idea, you shouldn't file a patent yet. Your invention must meet several requirements before you can get a patent. Read through the steps below to find out what to do before you file a patent.

  • You need to protect an artwork, a symbol, a logo, or intellectual property

Patents cover inventions and designs. They don't cover artwork, writings, logos, names, trade secrets, or intellectual property (IP). File for copyright, trademark, trade secret, or IP protection to secure appropriate rights.

  • Your invention isn't unique

You can't patent something that someone else already has the rights to. Follow the steps below to make sure your invention or design is unique before going through the patent process. You might, however, be able to patent an update or a change to an existing product or design.

  • Filing a patent can be expensive

In addition to the filing fee, you might have to pay other costs. You'll have to pay experts who help you develop your idea. If you file as a business, you don't have to pay employees who worked on the project. You'll have to pay lawyers who do legal research for you, though. If someone steals your invention or if you take someone else's, you'll have to pay legal fees.

Deadline

There is no deadline for filing a full patent application. You should do it as early as possible, though. The USPTO can take up to three years to approve a patent application. If you've filed a provisional patent application, you must file a full patent within one year.

Patent Maintenance and Renewal

Securing a patent is not the final step—you must maintain it to keep your rights valid. For utility patents, the USPTO requires maintenance fees at 3.5, 7.5, and 11.5 years after the grant date. Missing these payments can result in your patent expiring early.Design and plant patents do not require maintenance fees, but all patents eventually expire (20 years for utility and plant; 15 years for design from issuance). Planning ahead ensures your protection remains active throughout its lifespan.

How Much Does It Cost to File a Patent Application?

The cost of a patent depends on whether you file as an individual, a small business, or a large business. Registering to use the USPTO's Electronic Filing System will help you save money and file more quickly. The USPTO levies standard patent fees:

Description Large Business Fee Small Business Fee Individual Fee
Utility Patent $280 $70 $70
Utility Patent Search $600 $300 $150
Utility Patent Examination $720 $360 $180
Design Patent $180 $90 $45
Design Patent Search $120 $60 $30
Design Patent Examination $460 $230 $115
Plant Patent $180 $90 $45
Plant Patent Search $380 $190 $95
Plant Patent Examination $580 $290 $145
Provisional Patent $260 $130 $65

If you hire an attorney to write your patent application, you'll also have to pay legal fees. Attorneys determine their own fees, which usually fall in this range:

Invention Type Attorney Fee Patent Search With Opinion Fee
Extremely Simple $6,000 $1,300
Relatively Simple $7,750 $1,300
Moderately Complex $11,000 $1,750
Extremely Complex $15,000 $2,500
Software or IP $16,000 $3,000

Frequently Asked Questions

1. What makes an invention patentable?

To patent something, it must be new, useful, and non-obvious. It also must be described in enough detail for someone skilled in the field to reproduce it.

2. How long does it take to patent something?

On average, the USPTO review process can take 18–36 months, though some applications may take longer depending on complexity and examiner workload.

3. Can I sell my idea without a patent?

Yes, but it’s risky. Without patent protection, others could copy or profit from your idea. A provisional patent application can provide temporary protection while you develop your product.

4. What happens if I don’t pay maintenance fees?

Utility patents require maintenance fees at specific intervals. Missing them can result in your patent expiring and losing protection.

5. Is international patent protection automatic?

No. A U.S. patent only protects your invention in the United States. To secure rights abroad, you must file in each desired country or use treaties such as the Patent Cooperation Treaty (PCT).

If you need help patenting something, 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.