Do you have an incredible new idea that you think will take off once you launch it? You’re probably thinking of how to protect it from patent infringement. Fortunately, there’s a robust process in place to help make sure your intellectual property (and your profits) are protected.
The problem is that it can be a bit overwhelming to learn how to patent an idea, including the type of patent you should get and how you should go about getting it.
In this article, we’ll cover just that. You’ll learn the basics of patent protection and how you can get started with your own patent process.
What is a patent?
A patent is a document that declares you are the owner of an invention for a specified period of time. As the owner, you’re the one with the sole legal right to produce and sell that invention. Patent protection is so core to the way of life in the US that it’s a right granted in the Constitution.
How do patents work?
First, the inventor submits a patent application with the United States Patent and Trademark Office (USPTO). Once it’s approved, the patent holder gets exclusive rights to the invention.
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This essentially means you have the ability to fully control the manufacturing, use, and sale of the invention for as long as the patent is valid. This period depends on a few different factors, including the type of patent and the place it’s granted. Generally speaking, many patents last for about 15 to 20 years.
Types of patents
There are three key types of patents:
- Design patent. Design patents go to the inventor of a new, original, ornamental design for an article of manufacture. It applies to unique designs for items like furniture, clothing, or consumer goods.
- Utility patent. Utility patents protect those who create a new useful machine, process, or composition of matter, or any new and useful improvement thereof, as stated by the USPTO.
- Plant patent. Plant patents are for individuals who asexually reproduce a new type of plant. Asexual reproduction implies the plant comes into existence in a way other than from a seed—through methods such as grafting or cutting.
Patent vs. copyright
In the US, patents and copyrights serve as legal means to safeguard intellectual property. While they both aim to protect creations of the mind, they target different types of intellectual property.
How do they align? Patents and copyrights both function under US federal law to defend intellectual property rights.
What sets them apart? The key difference lies in the nature of rights they protect. Copyrights safeguard creative works like books, movies, and art. On the other hand, patents secure ownership rights over inventions, including consumer goods, machines, and their designs.
What are the different types of patent applications?
When applying for a patent, you have two main options:
- Provisional applications. These mark your invention with a " “Patent Pending” label. They are placeholders that lock in your filing date, giving your invention a head start over others. While not fully reviewed by the USPTO yet, you get one year to complete all necessary documentation and assess if your invention is market-ready.
- Non-provisional applications. This is the detailed patent application that kicks off the USPTO’s thorough review. It shows you’ve submitted all required information and are ready for evaluation. A patent will only be issued if the USPTO approves this application.
How to get a patent in 8 steps
You should be able to handle your own patent application process if you make sure to do your research. But many inventors find the process a bit complicated and decide to work with a patent attorney. A patent lawyer can be a great idea if you’re looking to get the job done as quickly as possible, with as few obstacles and roadblocks as possible.
Let’s look at the basic steps.
1. Consider if patent protection is appropriate
Sometimes a patent isn’t the right type of legal document to protect your intellectual property. For example, if your work is creative in nature, a copyright might be a more appropriate choice. If your intellectual property is a logo, brand name, or slogan, a trademark might be more appropriate.
As a general rule, a patent will be the right choice for physical products, inventions, and designs. If you’re having trouble figuring out which type of document you need, it’s a good idea to consult a patent lawyer for advice.
2. Ensure your idea is patentable
Just because you have an idea doesn’t mean you’ll be able to patent it. To be eligible for the patent process, your invention should meet a few criteria, including:
- Novelty. The invention needs to be new and unknown and not disclosed to the public. Essentially, this means that nobody has patented it before, described it in a printed publication, used it in public, or tried to sell it.
- Non-obviousness. The invention needs to have an inventive step. This means that it shouldn’t be an obvious solution in the eyes of someone with an average or ordinary level of skill in the field. Furthermore, even if your invention is new, it might not be patentable if a skilled person in the field would find it obvious as a new solution.
- Utility. The invention needs to be practical and specific in its use as an industrial application. Basically, it needs to serve a specific purpose or carry out a specific function.
- Subject matter eligibility. “Subject matter” refers to the types of things that are able to be patented. Your invention needs to be considered eligible subject matter or it won’t be considered. Excluded subject matter includes abstract ideas, natural phenomena, laws of nature, and artistic expressions. Eligibility can also be decided by country: for example, some countries exclude computer programs or types of medical treatment.
3. Keep things confidential
For a patent to be granted, your idea must be completely new. Revealing your idea to the public before filing can risk your chance to patent it. If someone else publishes similar findings or if you disclose your invention, it could be considered public knowledge.
In the US, you have one year from the time you publicly share your idea to file for a patent. However, most other countries do not offer this grace period. In those places, once you disclose your idea, you might lose the chance to patent it there. After you’ve filed your patent application, your invention status changes to Patent Pending, and you can then freely talk about your invention.
4. Do a patent search
Do a thorough patent search on the USPTO website to make sure nobody has patented your idea before. As we mentioned above, it needs to be novel. So if it’s been done, you’ll need to go back to the drawing board.
5. Choose your patent type
Choosing your patent type depends on what you’ve created. If you’ve invented a new look for a smartphone case that’s visually unique, you might opt for a design patent. But if you’ve invented a revolutionary smartphone battery that charges in a minute, a utility patent would be your go-to, as it covers the functional aspects of your invention.
6. Submit your patent application
To start the official patent application process and submit your patent application, visit the USPTO’s EFS-Web. You’ll need to ensure you meet all the guidelines and criteria, as well as submit the appropriate fee for the type of patent you’re looking to get.
There are two main patents you can apply for: a provisional patent application (PPA) or a regular patent application (RPA). A PPA lets you claim Patent Pending status, providing a 12-month period of potential deterrence to competitors without full patent protection. This process is generally less complex, and a patent attorney can assist in navigating it.
7. Work with your patent examiner as needed
If the patent office finds your application incomplete, they will send you a letter detailing what is missing. You will get a set period to fix these issues, which varies based on what’s lacking. If you don’t make the necessary updates, they will deny your application and send it back.
Once your application is complete, an examiner takes over to check if it meets all the patent rules. If they spot any issues, you get the chance to fix them. However, after two rejections, you can challenge the examiner’s decision by appealing to the Patent Trial and Appeal Board (PTAB).
8. Pay the necessary fees
If you’re approved by the patent examiner, the USPTO will give you a notice of allowance. Then, before the patent is officially issued, you’ll likely need to pay an issue fee and possibly a publication fee.
Patent checklist
The content of your patent application will hinge on what you’re aiming to patent and the type of patent you’re after. It should include:
- Patent description. This includes the invention’s name, purpose, components or steps, and their interactions. You also need to explain its use, describe any drawings, and note its benefits or other uses.
- Patent drawings. If your patent isn’t for a method, composition, or chemical compound, you need drawings. These should be clear, cover all views, and include proper labels. Your drawings could be line charts, sketches, images, or illustrations.
- Inventor information. Your application should name you and any co-inventors. Co-inventors are those who helped create the invention. Providing these details helps protect against legal issues or future patent disputes.
Protect your creation with a patent
If you have a great new idea, it’s worth it to at least explore the possibility of getting it patented. This can help to protect your business down the road and ensure that you’re the only one profiting from your intellectual property.
Since this can be a complicated matter, we recommend working with a patent attorney who can walk you through all the ins and outs you’ll need to get the job done well.
How to patent an idea FAQ
Can you patent an idea?
You can’t patent ideas. According to US patent law, only the physical forms of ideas—the machines and products—are patentable, not the foundational ideas.
Is it hard to patent an idea?
Obtaining a patent can be a complex and time-consuming process. Given the intricate procedures involved in filing, it’s easy to miss key information or stumble into errors. Therefore, you must play close attention and take your time when filing a USPTO patent application.
What is the best way to patent an idea?
The best way to patent an invention is to hire an attorney specializing in the patent filing process. Alternatively, you can refer to USPTO’s guidance documents for self-preparing a patent application.
How much does it cost to patent an idea?
Depending on the type of patent, the USPTO registration could cost up to $900. Examination fees of about $220 are separately charged. If you hire a patent lawyer, the cost of patenting even a simple invention, such as a small consumer item, is between $9,000 and $13,000.
How much does a patent attorney cost?
The cost of hiring a patent attorney can vary based on the complexity of the invention. For simpler inventions, some attorneys might offer a flat-fee arrangement. More complex cases with numerous variables typically require billing at an hourly rate. The hourly rates for experienced patent attorneys range from $200 to more than $500. To qualify for a flat fee, you’ll need to provide the attorney with detailed information about your invention and its various embodiments upfront.
How long does a patent last?
A utility patent usually lasts 20 years from the filing date, and a design patent lasts for 15 years. Remember, patent laws and time frames can change depending on where you are. Also, after getting a patent, you need to keep it active by paying a yearly fee to the Intellectual Property Offices where you filed your patent application.
Is the patent application process universal?
The patent application process differs based on the type of patent you’re filing for. Here’s what to know for each:
- Utility patents. For new and useful inventions, expect a response from the USPTO in two to five years. The process requires a detailed written description, including necessary drawings, claims, and other formal requirements.
- Provisional patents. This gives you one year from the filing date to submit a utility application. It should have a complete description of your invention, covering all variations and alternatives, but doesn’t need the formal details required for a utility patent.
- Design patents. For novel ornamental designs, the timeline from filing to issuance is about one to two years. You need to provide examples of the design, such as photos or drawings.
Always submit your application online via the USPTO’s portal to avoid additional fees associated with paper submissions.
