What Are the Steps To Patenting My Idea?
Understanding the patent application process
on November 14, 2022
U.S. patent law is designed to give inventors exclusive rights to their inventions. Patent rights:
- Give inventors the right to make, use, and sell their invention
- Enable inventors to exclude others from making, using, or selling their invention
“The patent system was created back when the Constitution was written. The idea behind it was a sort of bargain with the government whereby the inventor discloses to the general public how to make and use their invention so that everyone can benefit and make improvements upon that innovation,” says Boston intellectual property lawyer Rory P. Pheiffer.
“In return, the government grants a ‘limited monopoly’ to the inventor, enabling the inventor to control who is able to use their invention,” he says.
Parties seeking patents can include experienced as well as first-time inventors, startup companies, entrepreneurs, and large and small businesses.
Regardless of who the inventor is, “when someone gets a patent, they have the ability to make others get a license or some sort of permission from them in order to practice the invention that they have patented,” says Pheiffer.
Obtaining a patent is “a sort of bargained-for exchange with the government whereby you give the public the benefit of what you have innovated, and in return, you get some control over who gets to use that innovation for a limited period of time.”
“Currently it’s a twenty-year period of time” for patented inventions, he says.
This article will give a basic overview of how to patent an idea and what to expect in a patent filing. Once you have an overview of the options, it’s important to seek the help of an experienced patent lawyer in filing your patent application.
Make Sure Your Invention Meets the Basic Requirements for a Patent
First, you need to make sure that your invention qualifies for a patent. A patentable invention must be:
According to the U.S. Patent Office, things like “laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.”
Instead, the invention must be something entirely new or an innovation on previous inventions.
“Patents are intended to cover inventions–not quite ideas. It has to be some sort of technological innovation or some novel improvement over what already exists,” says Pheiffer.
Additionally, simply suggesting you have an idea for an invention is not enough. You must put your ideas into practice through some new machine, process, formula, or material.
Figure Out What Types of Patent You Qualify For
The most common type of patent is the utility patent. Utility patents protect an inventor’s rights in new and useful:
- “Compositions of matter” (such as chemical formulas or recipes)
- Methods of manufacture
- Improvements or innovations on existing inventions
There are also design patents that protect an inventor’s rights in the new ornamentation or external design of an invention.
Design patents apply to the external appearance of an invention rather than the underlying function or structure of an invention. Because of this, design patents are more limited than utility patents. For example, a design patent may not block a competitor from replicating an invention if the competitor can make the invention look different from what the design patent covers.
Another more niche type of patent is the plant patent. Plant patents are available for inventors who asexually reproduce a new, distinct type of plant.
Do Background Preparation and Research on Your Invention
In addition to figuring out if your invention qualifies for a patent and what type of patent to file for, there are other things you should do as you prepare to file:
- Do a patent search. The patent examiner who reviews your patent application is going to want to know if any patents already exist that bear on your invention. You must be able to disclose any patents or inventions that you know of. If you do not, your patent application will be denied.
- Keep track of your work. Keep a detailed log of your work on the invention. A record will help bolster your case to the patent examiner that the invention is your original work.
To figure out:
- Whether your invention qualifies for a patent
- The patent type you need
- If other patents exist
Consider speaking with a patent lawyer. An experienced lawyer will be able to give expert counsel on these matters and many other issues that come up in the patent process.
Two Paths to Applying for a Patent
All patent applications in the United States go to the United States Patent and Trademark Office (USPTO).
Patent filers pay a filing fee. The filing fee amount depends on the status of the filer as a “micro entity” (individual or company with annual income under a certain threshold), a small entity, or a large corporation.
“There are two approaches you can take” to filing a patent application, says Pheiffer:
- File a provisional patent application first
- Go straight to a full patent application
Let’s look at these options.
Option 1: Provisional Patent Application
The first option is to “file what’s called a provisional patent application (PPA),” says Pheiffer.
The PPA “is essentially a way to hold your place in line [for the patent]. You disclose to the Patent Office what your invention is, but it doesn’t have to be a full-blown patent application” with a detailed description of the invention.
The PPA “is usually a less-detailed document, but a document that at least shows that you have invented something,” says Pheiffer.
Once you file a PPA, you enter a “patent pending status” in which “you get a year from the filing date… to turn [the PPA] into a full-blown patent application.”
Who typically files for a PPA first?
“More often than not,” says Pheiffer, “for earlier-stage companies or solo inventors, [filing a PPA first] is a common approach.”
One reason that PPAs are common is that “it is a bit of a cheaper entry point” to getting a patent.
Additionally, the yearlong patent pending period “enables [inventors] to… further iterate and improve on the invention. More importantly, it lets them figure out what interest there is in the invention and whether it’s worth investing money in filing a full-blown patent application,” says Pheiffer.
A key question for inventors is whether there is “commercial interest such that it justifies going forward [with the full application]. You can use that year to go around and run the idea by people in the industry and potential licensees and figure out if the invention has legs.”
Option 2: File a Full Patent Application
The other option is to “jump to a full non-provisional patent application.”
“It’s more often the more experienced inventors who do this,” says Pheiffer. Experienced inventors “have a better sense of whether there will be interest in the invention and more often than not have more financial backing to jump straight to the non-provisional application.”
Get a Patent Attorney’s Expert Guidance
Whether an inventor chooses to file a PPA or go straight to an actual patent, Pheiffer recommends hiring a patent lawyer.
“While the inventor can certainly do a good job of informing the patent attorney or the public of how these inventions operate, it’s important to have an attorney help you think through the claims.”
What are claims in a patent application?
“Patents are property rights, and just like the deed to a house defines the boundaries of a plot of land, the claims at the end of the patent describe exactly what the patent covers,” says Pheiffer.
In other words, “The claims define what the invention is. Thinking through claim strategies and the best ways to draft and amend claims is often best done by a patent attorney because it’s the nature of their business and what they do every day.”
While an inventor is an expert in the technical aspects of an invention, a lawyer is an expert in the legal aspects of a patent.
Additionally, the patent application process can be time-consuming and complex. A lawyer lets you offload some of the effort in the process (for example, doing a patent search) and avoid problems that could delay the application unnecessarily.
“While a provisional application doesn’t require claims, I generally advise clients to file claims with a provisional application,” says Pheiffer. Claims “are so important at the end of the day that it’s worth thinking through what your claims strategy should be upfront.”
Questions for a Patent Lawyer
Most patent attorneys provide free initial consultations for potential clients. These meetings let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What will my patent filing fees be?
- How long will the patent process take?
- Should I file a provisional patent application or go straight to a full application?
- How do I enforce my rights against patent infringement?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a patent attorney in the Super Lawyers directory for legal help.