How Do You Secure a Patent?

If you’ve never invented anything before, you may not understand how to secure a patent. A patent is not secure until an application has been filed, reviewed, and approved by the U.S. Patent and Trademark Office (USPTO). Let’s say inspiration strikes, you’ve come up with an idea that will revolutionize your industry. You want to develop this new product and sell it to everyone. However, without a patent, you’ll be left at risk of other people just copying your idea and selling it before you even get going. Understanding this process is the crucial first step towards making your vision real.

Patent Safety

An inventor in the United States may pursue a patent for an invention by filing out a patent application with the U.S. Patent and Trademark Office. Any inventor in the U.S. can apply for a patent with the USPTO by filing a patent application. The application must include an exact, detailed explanation of what the invention does, how you came up with the idea, detailed drawings, and at least one concept for how it could be used. Once the application is complete, a patent examiner reviews it. Generally, the examiner is someone working with the USPTO who has intimate knowledge of the invention’s subject matter. This examination can take several years before an official ruling is made. You can seek amendments to your application as long as it is still pending, or disclaim any parts you feel could stop it from being ultimately granted to you. In short, the process is long and complicated.

In an official sense, you could consider a patent a legal right with federal protection which allows you to possess a monopoly on a specific idea, product, process, product or any other type of invention for a set period of time. Usually your monopoly under a patent lasts between 14 and 20 years. As an arm of the federal government, the USPTO limits how many patents they issue, with just a single patent being issued to each “novel” idea. Having a patent can be extremely lucrative as no one can compete with your exact product. If an idea is already patented, it cannot be used by anyone else unless they get permission from the person who currently holds the patent.

Different Types of Patent Applications

There are many different types of patent applications, you’ll need to understand which type best fits your desired patent.

  • Original applications have no ties to any other patent applications.
  • Continue applications are the opposite of original applications; they are based on some existing application, sharing several components which are identical.
    • This type of application will usually be used to change the preexisting application if the application’s processing has experienced delays.
  • Continuation-in-part applications should be filed If you have developed improvements to your original invention.
  • Divisional applications are required if the patent office has determined that your patent application actually covers multiple inventions at once.
  • Provisional applications can be utilized to get an earlier filing date for your invention and are good for quick protection.

The Different Parts of a Patent Application

As stated above, your patent application has to include several specific factors. These include drawings, details of how it works, a filing fee, and a statement asserting that you believe no one has ever invented this idea before you. When completing each piece of the application, you’ll need to include its title, any cross-references to applications related to your idea, what field of study the invention fits, an explanation of the invention’s “art”, an overview of the invention itself, drawings and explanations of those drawings, description of preferred embodiments, any claims to add to the application, and an abstract.

Your invention’s title gives a reviewing court or patent examiner their first indication of just what your invention does. Craft the title carefully so that it matches your intentions for your idea. The cross-references will let the patent office know that your application is related to other applications which were pending before it. This is most often seen in divisional, continuation, and continuation-in-part applications. If you’ve properly explained the invention’s field, it will allow a patent examiner to better understand if your invention can meet the requirements to be considered “novel” and “non-obvious”. This essentially means that the invention hasn’t been made by someone else before, and doesn’t represent an obvious development for the field. You’ll also need to be able to fully explain to the patent examiner all your associated art and how it pertains to the invention. When explaining the drawings, make sure to identify the invention from the perspective of someone actually looking at it who’s never seen it before.


Your patent application will require a summary. This is where you’ll describe all the advantages and features of the invention. These will hopefully be related to problems and inadequacies you’ve explained in the “background art” section. Your summary should also explain that your invention is “reduced to practice.” This means that it’s going to be utilized only for the intended purpose. To be a patentable invention, obviously your idea needs to actually work in practice. You cannot file a patent purely on a speculative idea.

Specification Sections

Because the public will have use of the invention after the patent has expired, the application must make clear how the invention is to be made and used. Once the patent expires, the public will be able to use it without legal ramifications. For this reason, the application has to clearly explain how to make and use your invention. This section is known as the description of the preferred embodiments. In this section, you’ll outline all the parts and materials used in actually creating the invention, and exactly how to use it in the real world.

Along with the description of the preferred embodiments, you’ll have to be extremely detailed in the claims section. It allows the court or patent office to understand if your invention can actually be patented, and exactly what the patent will protect. Here is where you’ll outline exactly how your invention functions. Be extremely careful in this section—don’t exaggerate any function or simplify any detail. Thoroughness is key here. Broad claims risk being rejected by the patent office while narrow claims won’t actually protect your full rights as the inventor.

Last among the specification sections is the abstract. This is one solitary paragraph which summarizes your invention. It quickly details why the invention is novel, and will be on the very first page of your patent upon its issuing.

Keep a Careful Record of Your Invention

To protect your invention’s patentability, there are a few key steps:

  • Make sure to write down every step in the inventing process in a physical notebook.
  • Make sure in that notebook to diagram and describe every feature, modification, and bit of inspiration for your idea.
  • It could also be useful to create a working prototype to test before applying.
  • Make sure every page of the notebook is signed and dated. Ask two witnesses you trust to sign the notebook too.

Make Sure Your Invention Qualifies for Patent Protection

Not everything is actually patentable. The USPTO won’t issue patents for simple ideas without any proven functionality. You have to be able to explain and prove that your invention actually works and is a new idea in the space. However, if you’ve already created a product and started selling it or telling everyone about it, the patent office will reject your application. You must be careful, thorough, and genuinely create something new.

Assess the Commercial Potential of Your Invention

Applying for a patent is a business decision. Whether you’re a large company or a first-time independent inventor, choosing to apply for a patent is, at its core, a business decision. You are weighing the potential advantages against the significant upfront costs. Even if you don’t hire a patent attorney or have any piece of the application professional completed, filing fees can still cost around $1,500. Make sure you do your research and make sure there’s actually a need for your invention in the market before you spend so much money and time on the application process.

Since your application will be rejected if it isn’t new, you’ll have to search through all earlier developments in the field. This will require an in-depth search of existing patents both in the U.S. and other countries. You’ll also want to look at technical or scientific journals which may tell you about related inventions. It is a lengthy process, but gets easier the more you do it. You could hire a professional to assist, but many people choose to begin the search alone since they actually know more about their invention than any professional possibly could.

You will no doubt discover patents similar to your invention during your search. However, this is useful as it will help you explain exactly how your invention is different from these earlier ideas.

Prepare and File an Application With the USPTO

When you file with the USPTO, you can either file a full-blown regular patent application (RPA) or a provisional patent application (PPA). The USPTO has two options for patents, you’ll have to choose which fits best for your situation. The two choices are a regular patent application (or RPA) or a provisional patent application (called a PPA). PPA’s are not actually true patent applications. They just let you acquire a patent pending status for your invention with a fraction of the cost and work of an RPA.

To secure a PPA, you’ll just have to pay a small fee based on the size of your business, provide a detailed explanation of what the invention does and how it’s made, and include a few rough sketches of the final product. You won’t have to have an actual physical prototype, but you will have to make sure the application clearly explains the invention.

Essentially, a PPA is a stop-gap that protects your invention while you complete the longer RPA process. If someone were to violate your patent while it’s under patent pending status, you’ll be able to sue them for patent infringement once the final patent has been issued.

If you are able to, through your patent application, explain that the invention truly represents a novel and useful product, you will finally earn your patent from the USPTO. Typically, the full process takes at least 18 months.

License Agreement

Perhaps through the process you’ve discovered that your idea has already been patented. In that case, you could go to the current patent holder and negotiate with them for a license agreement. In a license agreement, you get permission from the patent holder to use their patented product or idea. Depending on the type of agreement, you could even get exclusive usage rights. You’ll have all the same rights as if you have done all the work of securing the patent yourself.

Purchase Agreement

If a license agreement doesn’t work, you could go a step further and try to purchase the patent from its current holder. Since patents are essentially considered personal property, the owner of any patent can choose to sell it whenever they want to. This process is the only way to ensure that you get full control of an invention or idea once it has been patented by someone else. Once the purchase agreement has been signed, you become the brand-new holder of that patent. This is generally better than a license agreement because the license only gives you access to use the invention, not full control and ownership of it.

The patent process is lengthy and complex, but with enough time, resources, and research, you can safely protect your invention or idea for years to come.

If you need help understanding how to secure 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, Menlo Ventures, and Airbnb.