Patent Prototype: What Is It?

A patent prototype is a model, first creation, draft, or patent drawing of an invention. Prototypes are excellent ways to prove your concept or idea, but are not required in the patent application process by the United States Patent Office (USPO). This means you do not need a prototype to attain a patent and likewise, don't need a patent to create a prototype.

A patent signifies ownership of an invention or idea and protects the owner from infringement of that patent. Patent applications should be as detailed and thorough as possible. To show details, many applications include patent drawings or prototypes. So, while a prototype is not required for your patent application, it can help describe your idea or invention with a level of detail not found in written descriptions or patent drawings.

Is a Prototype Necessary for Patents?

No, a prototype is not necessary to apply for a patent . However, they can greatly improve the chances of having your patent approved. A working prototype can explain your idea much more thoroughly than other patent application resources like drawings or descriptions. Because details and fully understanding an idea are critical in the patent application process, it may be a good idea for you to create a prototype.

In fact, patent law requires that your patent application be detailed enough that someone skilled in your industry could copy your invention using just the details provided in your application. A working prototype would not just explain your invention, but it would make it easier to understand your idea.

A patent application can be expensive, so it's important that you don't take any chances with your patent application. You may want to hire a patent attorney to discuss the value of prototyping your idea before submitting your application.

Added Benefits of Prototyping

Creating a prototype does more than just increase the quality of your patent application. Building a working prototype requires extensive research and consideration. Prototyping helps inventors understand the production requirements of an idea such as the design, procedure, and limitations. It's an excellent process that can also reveal problems or opportunities with your original idea.

Additional benefits to prototyping your idea or invention include:

  • Determining whether the invention will work
  • Deciding what modifications must be made to the invention
  • Finding out and fixing and potential design problems
  • Identifying alternative solutions to problems
  • Marketing the invention to third parties, such as funders, donors, or buyers

Should You Create a Prototype?

Prototyping an idea or invention is not always necessary. Because it can be difficult, expensive, and time-consuming to produce a prototype, it's important to consider the value in creating a prototype.

You may not want to create a prototype for your invention if:

  • You don't intend to produce the actual invention
  • The design is simple and easily understood through description or illustrations
  • The cost to produce a prototype is substantial
  • If your intentions are to license the patent rights
  • If the technology is uncomplicated
  • If you're within a year after your first public disclosure of your invention, wherein you must file a patent application

With that said, many inventors may want to create a prototype for their patent application. You may want to create a prototype if:

  • The cost to build a prototype is less than $1,000 or the expense will not hinder future production
  • It can be developed quickly and won't take substantial resources
  • It is needed to illustrate basic functions of your invention
  • It is needed to make sure the product will work

Patents and Prototypes

Prototypes and patents go hand in hand. Both are important steps to take when you have a unique and profitable idea or invention. While they both can work together, one is not required for the other. This means you can have a patent without a prototype and a prototype without a patent.

Do You Need a Patent?

Before you apply for a patent, it's important to know if your invention is eligible for one. You might also want to investigate if a patent would be beneficial to your invention. Patent applications are expensive and if you're not confident that you need a patent, you should contact a professional patent lawyer.

You'll want to ask an expert:

  • Is my invention marketable?
  • Is my invention eligible for a patent?
  • Is my description detailed enough for a patent application?

Reasons to Patent or Build a Prototype

Studies have shown that 95 percent of patents never end up earning money for the patent holder. So, while they are not always lucrative, there are reasons to patent an invention. For one thing, it protects your idea or invention from being used, marketed, or sold by anyone else.

Financial Gain

Patenting your invention doesn't guarantee you'll see any financial reward, but it does give you the opportunity to monetize your idea. The patent itself does not generate revenue, but the product can. If you hold the patent on your invention, you're the only one who can produce and sell that product. You can also license your patent to manufacturers to produce your invention for a fee.

Likewise, creating a prototype doesn't provide immediate financial reward. However, investing into a prototype can help you develop proof of concept, which is an important requirement for investors and raising capital. Additionally, there are often inefficiencies in production of new products and prototyping can help you uncover those issues and fix them before they lead to huge expenses during larger production runs.

Higher Resale Value

Many inventors look to attain patents on inventions that they want to resale to larger manufacturers. If you own the patent on an invention, you own all rights to making, marketing, and selling that idea. You can increase the resale value of that patent by producing a working prototype.

A prototype provides assurance of your concept and helps improve the buyer's understanding of your idea. An investment into prototyping your idea can help increase the resale value.

Reasons to Not Patent or Build a Prototype

Both the patent and prototype process take time, money, and other resources that take away from the direct business operations. While they both may be important to the success of your idea, they are not always necessary. If you're considering patenting your invention or building a prototype, you should consider the following.

Prototypes Aren't Required

Prototypes are not a requirement to build a product or even acquire a patent. Thus, it might make sense for you not to create a prototype. Prototyping can delay your patent application or push the time it takes to get your product to market. If you can successfully build your invention or explain your idea through a typical patent application, then it might make sense to avoid prototyping. Consider this: 97 percent of all prototyped ideas don't make enough money to cover the cost of filing the patent application.

Patents Aren't Necessary

Many successful businesses never file for a patent. It can be a difficult process and one that might not make sense for your idea, especially if there are similar products to yours. Conduct research and decide if filing for a patent is the right move. If not, spend the resources improving your business processes.

Patents Are Time-Consuming

For many products, getting them on the market is the most important step. The backlog at the United States Patent and Trademark Office means it could take up to four years to receive approval for your patent. By that time, your product or invention might be obsolete. Get the product on the market and make money. Don't wait for a patent.

Deciding When to Patent or Prototype

There are many steps and questions to consider before building a prototype or filing a patent.

  • Is Your Invention Eligible for a Patent?

The first step to deciding when to patent is to find out if your invention is even eligible for a patent. If your idea qualifies as a law of nature, natural phenomena, or abstract idea, it is not patent-eligible.

  • Has Some Already Invented It?

This is where a patent search comes in. You can complete this by yourself or hire a professional patent searcher. There are many intricacies and tricks to searching for existing patents, which is why the help of a professional is recommended.

Professional patent searchers and patent attorneys also have access to patents that are being processed, not just those that have been approved.

  • Will You Sell Your Product to a Manufacturer?

If you plan to sell your invention to a manufacturer, a patent is important for protection. Without a patent, you cannot protect your invention. Additionally, manufacturers might want to see a working prototype before they purchase your idea. A prototype can help increase your resale value and also provide proof of concept.

  • Have Do You Made a Prototype?

Prototyping is both time-consuming and expensive. If you've never built a prototype before, you may want to hire a prototype developer. Prototyping and filing a patent are independent of each other, so you can do them at the same time. However, you may uncover design problems or development issues during the prototyping that might not be included in the patent application.

If the patent goes through before all the issues are worked out with your prototype, it will be too late to make any changes and you will have to file for a new patent. This means you'll have to either pay for a second patent application or take the risk of having only a partial coverage from your patent.

Steps to Create a Prototype and File a Patent Application

So you've decided to build a prototype and file a patent application. There are many steps you must complete on this journey. Don't forget that you can hire a patent attorney from UpCounsel to help. On average, a patent application costs $6,000 to $9,000 on UpCounsel.

From Idea to Patent

  1. Document
  2. Research
  3. Prototype
  4. File a Patent
  5. Market


Get yourself an inventor's journal for recording your ideas. An inventor's journal must be bound so pages cannot be added or removed. The pages must be numbered consecutively. When you have an idea, write it down. You'll then need to have it signed by a witness.


This is where you find out if there is a market for your idea. If no one wants to buy your product or invention, there's not much use in inventing it. This is especially true if you want to spend money on a patent or prototype.

Market research can be conducted in many different ways. Here are a few ideas:

  • Asking friends and relatives
  • Asking for an evaluation from a university
  • Finding buyers such as chain stores
  • Conducting a market study
  • Asking a marketing expert to conduct a market study

Remember when beginning your market research that your friends and family are likely to be biased in your favor. It's important to seek and listen to other opinions.


A prototype is a working model of your invention. It's OK to start out crude here, such as a sketch or drawing. As you continue to refine your ideas, you can ramp up the quality of your prototype. The prototype is important for finding problems and fixing kinks.

Types of a prototype:

  • Presentation prototype
  • Proof of concept prototype
  • Functional prototype
  • Production prototype

The different types of prototypes are useful at different stages of your invention and refining process. Toward the end of your process, you may need to hire professional designers to help you in building your prototypes.

Types of Prototypes

There are many different levels of prototype development. Your prototype can be basic or it can be a scale, working model.

Worth of a Prototype

A prototype is a three-dimensional, working model of your invention. The worth of a prototype at this level is hard to overexaggerate.

A working prototype helps you show your invention and convince investors and patent officials how worthy your invention is.

Presentation Prototype

The goal of this type of prototype is to excite and impress investors, distributors, and retailers. This type of prototype is usually not fully functional.

Proof of Concept Prototype

This prototype is less often used than the other types. This prototype may not look anything like what your final product will. The goal of this type of prototype is to prove the idea works. This type of prototype won't have a covering or branding on it. It will be a stripped-down version of the final product.

Functional Prototype

These prototypes will be very similar to the finished product, as they are a late-stage prototype that is used to work out small problems. This prototype should be used to refine details. It can also help in deciding the aesthetic details about color and design. This prototype is often made in small batches, meaning there may be more than one. There might also be more than one design.

Production Prototype

This is the last phase of the prototype. This prototype should be your final product and made in the actual factory. It's used to work out any final problems with function, design, and production. This prototype can also help to look for product quality.

Virtual Prototype

Computer-aided design, or CAD, has made huge technological advances in prototyping. Inventors can test invention ideas and designs without ever making a physical prototype. Much of the testing and prototyping can be done right in the system. The virtual prototype is typically a 3-D model of your prototype. This model will be displayed on a monitor and built with 3-D motion in mind.

A virtual prototype should be a complete image of your finished prototype. You should be able to view it from all angles. A virtual prototype can be as detailed as is desired at the time. Eventually, a virtual prototype should resemble the finished product as closely as possible.

File a Patent

Once you have completed testing on your prototype, you can begin the process of applying for a patent. Remember, a patent is not necessary but it can be very helpful. A patent offers protection to your invention. If you hold a patent on your invention, it means you are the only person who can sell or market that invention.

There are many steps to obtain a patent, and some of them can begin at the same time you are building your prototype.

  • Get a patentability opinion from a patent attorney
  • File a provisional patent application (12 months). This allows you to use the term "patent pending" on your product
  • File a nonprovisional patent application

There are a few reasons you may not want to file for a patent. Those include:

  • The patentability opinion from the patent attorney states that you are unlikely to receive approval for a patent
  • The cost of the patent application process is too high for your current funding
  • The market is so small that you are unlikely to have competition for your marketing your invention


When you reach this stage, it's time to make another decision. You can sell your product to a company that will create and sell your product or you can do it yourself.

Consider whether or not you are comfortable being an entrepreneur or are happier being an inventor.

If you decide to market and sell the idea yourself, it's time to create a business plan.

Don't Wait

Many inventors wait until the prototype is built and/or patented before contacting potential buyers. It's important to get buyers and funders interested as early as possible in your idea. The guarantee of capital makes the process much easier. If you wait too long, your invention may become obsolete as the market changes quickly or someone else may market or patent it first.

Approaches to Patenting a Prototype

Depending on your personality and tolerance for different types of risk, there are different ways you may want to approach applying for a patent for your prototype.

Patent Protection Through Multiple Patents

It is possible to submit a patent application prior to creating a prototype. There's a small amount of risk for an increase in cost for this strategy, but being first to file is very important.

With this approach, you file your patent application as soon as possible, before creating a prototype. As the patent application is being processed, create your prototype. Once your prototype is created, you and your patent attorney can decide if you want to file for another patent.

If new information is discovered when creating your prototype, that might be worthy of a second patent. Be sure to assess if the second patent is worth the cost of the second patent application cost.

Prototype, Then Patent

In contrast, you might want to create your prototype first. This shifts the risk from cost to timeliness. If someone files for a patent on an invention similar to yours first, you lose the right to patent your invention.

Confidentiality is very important under this patent approach. Be sure that anyone who works on the project signs a nondisclosure agreement or an NDA.

If this is the approach taken, it make including all details of the invention and prototype very easy. It's less likely that a second patent application will be necessary.

Hold Off on Prototyping

Prototyping seems like it would be extremely helpful, and it will be, but hold off as long as you can. Keep your money in your pocket instead of paying others to build the prototype. If you can, build a crude one yourself. Start there and build up over time.

Save Your Money

Money is an important commodity in the inventing and patenting game. Prototype and patents are expensive. Create a solid idea before investing.

Your first invention is also likely not going to be your last. If you spend all your money very early on, you'll likely not have the resources to continue inventing.


  • Is a patent necessary for my invention?

No. You can create an idea and go straight to market. There's very little required structure when it comes to inventing and selling ideas.

  • What's the benefit of a patent?

A patent protects your invention from being used or sold by someone else.

  • Do I have to build a prototype?

No. A prototype can be useful for finding problems with your invention, but it is not required to receive a patent.

If you need help with prototypes and patents, 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.