How to File for a Patent

By business.com editorial staff,
business.com writer
| Updated
Jul 02, 2020
Image Credit: Gajus / Getty Images

It's common for people to be confused about the patent process. We answer your FAQs.

  • If you have an idea for a product or service that is not currently available, it's important that you file for a patent for your idea. The patent will protect your idea, preventing someone else from developing the product.
  • There are many different types of patents; it's important to choose the appropriate type of patent for your idea. It's also recommended that you hire an attorney who is experienced in patents to help you through the process.
  • The process of filing for a patent can take as long as three years, so it's important to ensure your application is perfect before submitting it. Reviewing your application ensures your patent will not be rejected for a simple mistake.

What types of ideas can be patented?

To meet the qualifications for a patent, your invention or discovery must be new, useful, an improvement on prior processes or techniques, nonobvious and/or novel. For a comprehensive outline of the parameters for patentable inventions and concepts, check out the U.S. Patent and Trademark Office.

Do I need a patent lawyer?

No, you are not required to hire an attorney to file for a patent. However, there are patent attorneys for a reason. The way a patent application is written can impact the outcome of the application, and the more technically complex your invention is, the more likely you are to benefit from hiring a patent attorney.

You may also take a middle-of-the-road approach and write the patent application yourself and then have a patent attorney review it, which can save you some money on the legal side of things. In general, however, if you are serious about obtaining a patent, you should seek some form of legal counsel.

How to file a patent

Although it's recommended that you work with a patent attorney when preparing your patent, it's equally important that you understand all of the steps involved in filing a patent. Here's an overview of the process:

  • Search the U.S. Patent and Trademark Office. Before investing your time and money, you need to make sure your idea has not already been patented.

  • Find a patent attorney. The process of filing a patent application can be much easier with the help of an experienced patent attorney. An experienced attorney can help you avoid timely and costly mistakes.

  • Determine the type of patent needed. There are many different types of patents; choose the type that best fits your idea.

  • File a provisional patent application. This process provides you with an added layer of protection should someone else attempt to claim they had the idea before you did.

  • Become a registered e-filer. Your patent application can be filed either by mail, fax or online. Filing online makes it easier to find the resources you may need later on, and you'll know exactly what's expected of you during the application process.

  • Gather essential information for the formal application. You will need to prepare a specification that includes a background, abstract, summary and detailed description as well as a conclusion. Have all of this information ready to go before you file your application.

  • Complete the formal application. It typically takes one to three years for patent applications to be processed; for this reason, you do not want to have it rejected for simple mistakes. Carefully review the formal application before submitting it.

  • Be an active participant. An examiner will be assigned to your case. If you receive any requests or correspondence, it’s important to respond as soon as possible. If you have an attorney, the examiner will generally communicate with them directly.

What types of patents are there?

There are three primary types of patents: utility patents, design patents and plant patents. Utility patents are the most common patent type. There is also something called a provisional patent, which is not a full patent, but can be useful for those in the early stages of obtaining a patent.

What is a utility patent?

utility patent "protects the way an article is used and works." It can apply to a technical process, or a machine might fall under the utility patent umbrella. Utility patents are unique in that they may include multiple claims. In other words, the item or process you attempt to register can contain more than one unique part.

What is a design patent?

design patent "protects the way an article looks." However, not just any design can be patented. According to the USPTO, "The ornamental appearance for an article includes its shape/configuration or surface ornamentation applied to the article, or both. Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance."

Additionally, the design aspects of the object must be irremovable from the object. In other words, you cannot obtain a design patent for an aesthetic adornment that is removable; the aesthetic design must be an intrinsic part of the object in question.

What is a plant patent?

plant patent is not common for individual inventors or business owners, and if you haven't heard of plant patents already, it's unlikely you'll ever apply for one. A plant patent allows an individual or organization to patent a new variety of plant that was "invented or discovered and asexually reproduced." Such patents protect the patent owner's right to "exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts."

What is a provisional patent?

provisional application for a patent may be submitted by an individual who wants "to file without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement." As the name implies, a provisional application is not a permanent solution. A provisional patent provides some exclusionary protection for a 12-month period, during which a full patent application must be filed if a patent is to be obtained. A provisional patent cannot be extended.

How do I know if someone has already patented my idea?

The USPTO has a searchable online database of registered patents and trademarks, but be warned, the search function is clunky. In fact, unless your terms are extraordinarily specific or technical, you're unlikely to get any results that are even related to your idea. If you strike out on the online database, visit a Patent and Trademark Resource Center for assistance.

How much does a patent cost?

The cost of obtaining a patent varies widely. If you hire a patent lawyer, there will be extra costs, and different types of patents have different associated fees. The legal costs associated with obtaining a patent (with help from an attorney) vary based on how complicated the patent is and how complex the invention or discovery is.

How do I choose a patent lawyer?

If you use a patent lawyer, find an attorney who has filed similar types of patents in the past. For example, if you are a scientist and your discovery or invention is highly technical, choose a lawyer who has experience with other highly technical patents. If you are confident that you can write your own patent application, you may also seek online legal services to file your patent application for you.

business.com editorial staff
business.com editorial staff
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