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How to File for a Patent

Mona Bushnell
, writer
Nov 06, 2018
Image Credit: Mark Van Scyoc/Shutterstock
> Business Basics

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

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. While it's unlikely this caveat will affect you, it's worth noting that "The Atomic Energy act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon." For a more comprehensive outline of the parameters for patentable inventions and concepts, check out the website for 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.

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?

A utility patent "protects the way an article is used and works." Anything from a unique invention to a technical process to 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?

A design patent "protects the way an article looks." However, not just any design can be patented. According to the U.S. government, "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?

A 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?

A 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 already patented my idea?

The United States Patent and Trademark Office has a searchable online database of registered patents and trademarks, but be warned, this is a government website and the search function is appropriately 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, make sure you 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, make sure you 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.

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Mona Bushnell
Mona Bushnell
Mona Bushnell is a Philadelphia-based staff writer for and Business News Daily. She has a B.A. in writing, literature, and publishing from Emerson College and has previously worked as an IT technician, a copywriter, a software administrator, a scheduling manager, and an editorial writer. Mona began freelance writing full time in 2014 and joined the Business News Daily/ team in 2017. She covers business and technology.
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