How to File a Patent on Your Idea
It’s taken you years to invent the world’s next necessity; maybe you’ve created a unique product design, a game-changing technology feature, or even spliced together a never-before-seen plant genome. Either way, you’re ready to market your innovation and reap the benefits. But before you cash-in on your work, you must first file a patent.
Patents protect inventions, original designs and novel processes. They lawfully exclude others from stealing your idea and from selling or importing it for profit. Applicants must file for a U.S. patent at the U.S. Patent and Trademark Office, which can be found online here.
Of course, like any bureaucratic process, the filing of a patent can be tricky and time-consuming. This article should help ease the process, but if more help is needed, a good patent attorney can provide more assistance.
But before we get started, let’s look at the basics.
Types of Patents
- Utility patents protect inventions and discoveries of new processes, machines, manufacturing innovations or material compositions. They can also be applied to improvements on old products or techniques.
- Design patents protect any new, original and ornamental design for manufactured goods.
- Plant patents can be granted to those who’ve invented or discovered and asexually reproduced a new variety of plant.
- Provisional patents differ from those listed above. They are filed before your invention is completed and offer partial protection from potential competitors; full protection is only granted once you’ve gathered and filed everything you need for a full patent. Fees are lower for provisional patents, and they give the applicant a year to complete and file a non-provisional patent. The term “patent pending” refers to those with provisional patents.
Before You File
Long before you even start thinking about filing a patent, you must keep extensive details of your ideas and processes.
Many great inventors keep an inventor’s notebook. Perhaps the most famous is Leonardo da Vinci's.
Notebooks provide documentation. Detailed figures and notes can help prove originality in a patent-infringement lawsuit. While it won’t necessarily hold up in court, an inventor’s notebook is a great way to organize your thoughts and keep track of your processes.
Be sure to always include the dates in order to prove the timeline of your work. It may seem like a good idea to mail notes to yourself to postmark the dates of your notebook, but these don’t stand up in court, so forego this thought.
Use permanent ink and avoid hasty revisions like scribbling, white-outs and erasures. Document any changes later in the notebook as they arise; a notebook full of crossed-out corrections can seem suspicious, as these corrections could have been applied any time. Use the dated and paginated notebook to prove the timeline of you work.
A good idea is to have a witness sign pages of your notebook at least once every few weeks. Have your witness read your work and explain to him/her any confusing sections. Should a patent lawsuit arise, the witness’ ability to explain the inventive process outlined in your notebook may be the only thing that keeps your innovations lawfully yours.
Do You Need a Patent Attorney?
In many cases, patent attorneys are not necessary. Everything you need to file for a patent is available online, and patent examiners can also help with the steps involved in filing a patent. Sometimes, due diligence and a little bureaucratic help can go a long way to save money in an already expensive process.
Patent attorneys are, however, very useful in determining the validity of a patent claim.
Many patent lawyers have undergrad or graduate degrees in engineering. They can help determine if your invention is original and warrants a patent claim. A good patent attorney can help expedite the whole process and may save you money in filing fees; they can also quickly determine if your idea is not original, a heartbreaking revelation, but one that will ultimately save you money and time.
If you’re successful in acquiring a patent, a patent attorney is a necessity. An attorney can help execute and expedite the steps needed to license your patent to another company. They can also help identify and prosecute any patent infringements.
The USPTO website has a searchable database on patent attorneys that can help you easily find one in your area.
Completing the required forms and documents for a patent can be extremely complicated. If you’re hesitant or unable to talk to a patent lawyer, a patent template can be useful.
Utility patent applications must include the following documents and forms:
- A Utility Patent Application Transmittal Form or Transmittal Letter, which lists all items being filed in the application. It should also identify the applicant, application type and the name of the invention.
- An Application Data Sheet that acts as a bibliography. It must include the applicant’s basic information, information on your filing application, correspondence information, etc.
- A Specification document that textually describes the invention, the process of its creation, its use and your claim. Avoid esoteric jargon in your specifications; the descriptions should be clear enough to be understood by non-experts.
- An Oath or Declaration that states your belief in the originality of your invention. Oaths are sworn statements given before a notary public or other authorized officer, whereas a declaration is a signed document that can be mailed or handed in to the U.S. Patent and Trademark Office.
- Depending on your specific invention, other documents (such as drawings, nucleotide or amino-acid sequence listings, tables, etc.) must be included. Don’t be hesitant to send you work; it’s always better to send too much than to send an incomplete application that further delays your patent.
New patent applications sent through USPS can be directed to the Commissioner for Patents at P.O. Box 1450, Alexandria, Va., 22313-1450; those sent through other delivery services can be directed to the U.S. Patent and Trademark Office, Randolph Building, at 401 Dulany Street, Alexandria, Va., 22314. Other documents must be sent to specific mail stops; a list and descriptions of these mail stops can be found on the USPTO website.
Those applying online can submit applications through the USPTO’s electronic filing system.
All documents should be in standard letter size. If applying online, PDF forms should be used. Handwritten signatures are required, but any other handwritten text is not accepted in PDF files.
This is obviously a very basic overview of required patent documents. For a more in-depth look, check out the USPTO guide to filing here.
The cost of filing, acquiring and maintaining a patent varies greatly. An in-depth chart on patent fees is available on the USPTO site, but below are some basic numbers you should know:
- Basic filing fees run anywhere from $45 for a micro entity to $280 for normal entities.
- Large claims can cost up to $420.
- Large applications that exceed 100 sheets can incur a $400 fee for each additional 50 sheets.
- If your documents need translating, a translation fee ranging from $35 to $140 will be charged.
- And beyond that, maintenance fees can reach the thousands.
Filing a patent claim can be expensive, but be sure to remember this one money-saving tip: File online. “Non-electronic filing fees” are assessed to applications sent by snail mail or delivered in-person. Depending on your application, these fees can reach $400, so be sure to save yourself the time and money by applying online.
After You File
Next comes the waiting game. Patent approval can take up to three years, so it’s good to be fully prepared with a completed application to avoid lengthy processing.
An official filing receipt should be sent to your return address within a few months. Review the info on the receipt to make sure it’s all correct. Upon receiving the receipt, and depending on the type of patent you’re seeking, you can then label your invention as “patent pending” or “patent applied for.”
Within a year, the USPTO should send you an office action that informs you of your application’s rejection or approval. If not approved, the office action will indicate at least one reason for its rejection; common reasons for rejection include:
- Non-patentable: According to the Manual of Patent Examining Procedure, “the laws of nature, physical phenomena, and abstract ideas have been held not patentable.” This means scientific discoveries and theories cannot be patented.
- Restriction: This indicates that your application contains more than one invention. If this happens, you will need to choose what invention you wish to proceed with; the others will need to be filed separately.
- Obviousness: Obviousness can be tricky to understand. It’s more subjective than the other reasons listed here. The Manual of Patent Examining Procedure states that an invention is obvious “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”
- Prior art: This can mean someone has already filed for a patent for your invention or that the invention was published in a journal or other reference. It is extremely difficult to appeal this rejection.
Depending on the reason for rejection, the applicant has anywhere from one to three months to respond. If the application is still not approved, a second and “final” office action will be sent. If your application is still rejected following this second office action, your only recourse is to file an appeal with the Patent Trial and Appeal Board.
If your application is approved, a notice of allowance is issued. This means your invention is patented upon reception of the issue fee, which must be paid within three months of the issue. Issue fees range anywhere between $255 and $1,780.
Following that, patent-maintenance fees are due at 3.5, 7.5 and 11.5 years from the patent’s issue. These fees range from $400 to $7,400.
Utility and plant patents last for 20 years from the application date of the patent. Design patents last for 14 years.
For more detailed information regarding patents, check out the U.S. Patent and Trademark Office’s website.
Nick is the managing editor of the Small Business Center. He and his team create content that helps entrepreneurs start, grow and manage their business.