You?ve Invented Something
What the patent application process is like
on May 21, 2018
Updated on July 29, 2022
Eureka! You’ve got the idea of the century—an invention that will revolutionize an industry and leave a lasting influence on the world.
What do you do now?
There are two primary requirements to file for a patent under U.S. Patent Law: What you are claiming as an invention must be both novel and non-obvious. A patent will not be granted for something that would have occurred in the ordinary course of advancing a product, but instead must be something that is innovative. The litigation system can challenge patents that shouldn’t have been issued, as well as enforce issued patents.
To acquire a patent, you will enter into a process called patent prosecution, which involves preparing an application, and filing it with the U.S. Patent and Trademark Office (USPTO).
“Then there is a negotiation that can go for a couple of years, where the government pushes back on what you’re trying to patent and the attorneys negotiate, review, write more detailed descriptions, or appeal within the patent office,” says patent litigation attorney John D. Vandenberg of Klarquist Sparkman law firm. “You are always trying to get the best patent possible.”
After a patent is approved, you must protect the patent rights through the courts. “Litigation is mostly on the defense side, where we are defending claims against patents,” says Vandenberg. “But there is also the enforcement of patents through plaintiff side litigation.”
Finding infringers varies by the product in question. “If it’s a gadget you find a Walmart, you can take it apart and assess whether there is infringement—it’s fairly easy,” says Vandenberg. “But, with machine learning, and AI systems that are in the cloud—protected by trade secrets—you can’t always reverse engineer it and figure out whether they are infringing.”
If you do have a patent, and you believe a competitor may be infringing on it, a litigator can help investigate. “To file a lawsuit, you don’t need to have absolute certainty there is infringement—but you can’t just guess,” Vandenberg adds. “Attorneys can help to find that answer.”
If you’re yet to file, Vandenberg says the most simple patents cost between $10,000 and $15,000, which will be spread over a two-year period before the patent is issued.
Legal Advice Helps
Inventors are allowed to go through the patent process by themselves, but, says Vandenberg, it’s rare that someone is successful without an attorney. “That one person would have to be someone who had gone through the process with an attorney 10 times before, and has an aptitude for it. Even then, most would not be successful without an attorney”
Be certain to hire a reputable and experienced patent attorney to help protect the futures of your brilliant ideas. If you’d like more general information about this area of the law, see our patent law overview.