Fremont Patent Attorneys & Lawyers

How to Patent an Idea

Learning how to patent an idea is an important process to understand so you can protect your ideas from others copying and profiting from your hard work.

Unfortunately, the filing process can be scary if you’ve never done it before. Taking an idea from conception to patent requires a large investment of time to research your idea and its market, create detailed drawings, and learn how to write clearly using very specific terminology.

If you follow our 5 easy steps you can protect your million dollar idea from competitors. However, as an important note, it is strongly recommended that you always consult with an experienced patent attorney for reasons outlined at the bottom of this article.

To begin patenting your idea, you must understand what a patent is:

What is A Patent?

A patent is a legal grant or license from the USPTO that gives an inventor exclusive ownership rights to his or her invention over making, using, offering for sale, and selling the patented item or idea in the U.S.

What is not given is the right to make, use, offer for sale, sell, or import the idea. For example, if you get a patent for baby formula, it doesn't mean you have the right to sell or market your baby formula before passing through lots of regulations and tests. You only have the right to prevent others from selling or marketing what is covered in your patent claims.

Types of Patents:

There are three types of basic patents recognized by the USPTO:

• A Utility Patent is the most common patent type and is used for approximately 90% of patents. According to the USPTO, a utility patent is issued for the invention of a “new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof…” Utility patents protect its holder’s rights for up to twenty years from the date of patent application filing.

• A Design Patent is issued for a “new, original, and ornamental design embodied in or applied to an article of manufacture…” In general terms, while a utility patent protects the way a product is used and works, a design patent protects the way a product looks.

• A Plant Patent is issued for a “new and distinct, invented or discovered asexually reproduced plant…”

Provisional Patent Application: What is it?

A provisional patent application is a type of patent application filed with the US Patent and Trademark Office. Under US patent laws that went into effect in 2013, an applicant who is the first to file a patent application for a new invention has an effective filing date over those who file later. The provisional application is a lower cost application that allows you to gain first to file status quickly.

However, a provisional patent application does not become a granted patent and is not examined on its merits.Formal examination that leads to patent grant is delayed during the provisional application period. It is a sort of holding place, for up to one year, to document your invention date and gain first to file status. To obtain a patent on the invention, you must file a non-provisional patent application.

A non-provisional patent application is a highly detailed application that will be examined by a USPTO patent examiner and can become a granted patent. A granted patent can fully protect your invention and be enforced against others. You can also claim the benefit of your provisional filing date in your non-provisional application, if it’s filed within 12 months after your provisional filing.

You may file a non-provisional application initially. However, a provisional application affords you time to complete the detailed and more expensive non-provisional application and develop your invention into a market ready asset. In addition, the 20 year patent term does not start to elapse during the provisional pendency time. Therefore, you effectively get an extra year of patent protection.

Compared to its related non-provisional application, a provisional application can be filed with an abbreviated disclosure. Formal patent claims, an oath or declaration, and an information disclosure statement of prior art are not required. Drawings are not required unless they are necessary to understand your invention. Curiously, they usually are necessary. If you have any question about whether drawings are necessary to understand your invention, then include them.  

Keep in mind that a provisional filing must meet US patentability requirements. It must also include enough details to be a complete template for the non-provisional filing. If an examiner decides that your non-provisional filing is too different, then you will lose the benefit of your provisional filing date for any new subject matter. The examiner may believe that the differences show that you were not in “possession” of your invention. The scope of your provisional disclosure must fully support your non-provisional application to avoid such new matter rejections. That includes text and drawings.

When you evaluate which type of application to file, consider how long it will take to develop your invention into a product and its viable market life. For example, a long development time or a long market life often favor filing a provisional application. In part, that’s because your 20 year patent term clock does not start ticking away during the time that the provisional application is pending.

The level of innovation in your field of interest, urgency to obtain a granted patent, and investor demands, are examples of factors that may complicate your filing decisions. Each situation is unique. An experienced patent attorney will help you make an optimum choice between filing a provisional or non-provisional patent application.

What Is a Patent Infringement Case?

Patent infringement cases result when a patent owner, or any entity who holds sufficient interest in a U.S. patent, files legal action against someone they claim is using the patented creation without permission.

Your defenses in a patent infringement case can include:

• Invalidating the patent

• Claiming non-infringement

• Citing prior use, first sale or repair doctrines, inequitable conduct, patent misuse, or limitation on rights

• Laches, formerly an important defense, may soon no longer be valid

Overview of a United States Patent

United States patents are issued by the U.S. Patent and Trademark Office (USPTO). They cover all useful and non-obvious inventions. A patent gives you the right to prevent others from making, using, selling, offering for sale, or importing the patented invention.

There are, in general, three varieties of patents:

• Utility patents — these protect useful and new inventions. They are what people usually mean when they say "patent."

• Design patents — these protect the way something looks.

• Plant patents — these provide protection for new and distinct plant varieties that have been asexually reproduced under controlled conditions.

Patents filed before June 8, 1995, provide protection of 17 years from the date of issue, or 20 years from the filing date — whichever is longer. Patents filed later provide protection of 20 years from the date of filing.

A patent includes the following elements:

• Cover Page — includes:

  • the filing date

  • date of issuance

  • title

  • inventors' names,

  • assignee (if any)

• Specification and Claims — this is the main body of the patent, which includes:

  • complete description

  • background

  • technological background

  • figures

  • drawings

  • the scope of the invention

  • claims of ownership

  • assertion of rights to exclude others

  • outlines of each element and limitation of each apparatus or method of the invention that is covered under the patent