If you’ve just finished working on an awesome invention, you might be wondering how you can patent that invention. The USPTO allows inventors to patent something so long as it meets the patenting requirements and a patent application is properly prepared and filed with the patent office. We will go into much detail about what you need to do to patent something below.
How to Patent Something?
You should follow these steps if you want to patent something:
- Determine the proper type of IP protection
- Determine the type of patent you need
- Does your invention meet the patenting requirements of:
- Patentable subject matter
- Patentable subject matter
- Prepare your patent application
- File your patent application for & pay the applicable fees
- Checking the status of your patent application & following up with the patent office
Determine the Proper Type of IP Protection
U.S Law offers holders of intellectual property several different ways to protect it. For example, patent law allows inventors to patent their inventions, machines, process, and designs. Obtaining a patent allows inventors to stop others from using their inventions without their permission for a limited period of time.
Trademark law allows mark holders to register their marks with the USPTO to stop others from using their marks in ways that confuse consumers as to the source of goods or services.
Copyright law allows the creators of artistic works, such as songs, books, articles, movies, and drawings to protect their work by registering their work of art with the US Copyright Office. Registration allows artists to stop others from misusing or copying their artwork without their express permission.
If you’ve determined that the proper IP protection for you is a patent, you should proceed to the next section to determine what type of patent you need for your invention.
Determine the Type of Patent You Need
Once you’ve determined that your IP can be protected by a patent, you should decide what type of patent you need. 99% of patents filed are utility patents and design patents, so you’re probably wondering what the difference is between a utility patent and a design patent.
Utility patents protect new inventions, machines, processes, compositions of matters, articles of manufacture, and any improvements of these. That said, utility patents protect how inventions work and how they’re used by the end-user.
Design patents, on the other hand, protect the aesthetic or appearance of an invention. Said differently, design patents protect how an invention looks or the design of an invention.
So, now you should be able to determine whether your invention requires a utility patent or a design patent.
Both Types of Patents
You should know that some inventions qualify for both a utility patent as well as a design patent. However, to obtain both patents, an inventor must file both a utility patent application and a design patent application.
The utility patent application protects how the invention works or functions and the design patent protects the appearance of your invention.
If your invention has a unique function, as well as a unique appearance that customers like, you should consider applying for both types of patent protection.
Does Your Invention Meet the Patenting Requirements?
To patent your invention, the invention must meet the following requirements set forth under US Patent Law.
1) Patentable Subject Matter
To patent something at the USPTO, the invention must have a patentable subject matter, meaning that the invention must be one for which patent law offers protection.
Patent law allows inventors to patent machines, processes, compositions of matters, articles of manufacture, and designs. So long as your invention falls within one of these categories, you can proceed with patenting your invention.
To patent something, your invention must be novel. The novelty requirement mandates that your invention be different from anything that has ever been patented before and different from anything that has ever been publicly disclosed.
US Patent Law has placed the novelty requirement to stop people from re-patenting once patented inventions. If an inventor cannot show that his invention is novel, he will not be able to patent it in the US.
If you have an invention, you must file a patent application within 12 months of publicly disclosing your invention or offering it for sale.
Also, prior to filing a patent application with the USPTO, it is critical that an applicant perform a prior art search to ensure that no one else has ever patented the invention or publicly disclosed the invention that the applicant wants to patent.
If the prior art search does not turn up inventions that are the same, an applicant can proceed with patenting his invention. However, if the patent search turns up inventions that are the same, the applicant should not file a patent application because the patent office will reject the application for lack of novelty.
The third requirement to patent something is that an invention is non-obvious at the time an applicant files a patent application with the USPTO.
Said differently, to patent an invention, the invention must be non-obvious and sufficiently different from anything that was already patented or publicly disclosed.
To test nonobviousness, the patent examiner conducts a subjective determination that asks whether an ordinary person skilled in the field of the invention would have believed the invention to be obvious at the time an applicant filed his patent application.
The nonobviousness inquiry is a subjective and factual inquiry that is undertaken by the patent examiner to determine whether the invention is, in fact, something that’s new or whether it’s just a combination of previously patented or publicly disclosed inventions.
Nonobviousness is the biggest hurdle that inventors face and must overcome to successfully patent their inventions.
To overcome nonobviousness, it helps if an applicant is able to show that there is a big difference between his invention and previously patented inventions and publicly disclosed invention.
It also helps if an inventor can show that his invention solves a problem or offers a solution for a problem that no other invention has been able to solve as this goes to show that the invention functions differently and achieves a desired result that no other invention has been able to achieve.
4) Usefulness (Utility)
To obtain a patent for something, an inventor must show that his invention is useful or offers some utility. Said differently, an inventor must show that his invention offers some identifiable benefit to society.
For many inventions, their utility is apparent from the invention itself. Take for example nail clippers, any person looking at them or their description will know that the benefit offered by them is the ability to trim nails, as such including a statement about their utility is not necessary.
However, for some inventions, utility is not readily apparent. In such a situation, it would be wise to include a statement that explains the utility of the invention (benefit of the invention).
Inventions are rarely rejected on the grounds that they are not useful, but to make sure that you satisfy this requirement, it’s a good idea to include a short statement that highlights the utility or usefulness of your invention.
Preparing a Strong Patent Application
After you’ve determined that your invention qualifies for a patent and you’ve successfully conducted a prior art search, it’s time to prepare your patent application.
Preparing a patent application is one of the most time-consuming parts of patenting your invention, but it’s the most important part because it sets the scope of protection for your invention.
Hiring an experienced patent attorney to prepare your patent application is the most important thing you can do to obtain the strongest patent protection for your invention.
A patent application must include the following sections:
- Title of your invention
- Cross-references to relevant patent applications
- A statement explaining any Federally sponsored R&D
- Background of the invention
- Summary of the invention
- Invention drawings
- Brief description of the drawings
- Invention claims
- Abstract of the invention
The patent application for an invention must include sufficient detail to enable both the patent examiner and a person familiar with the field of the invention to understand how to make the invention, as well as how to use it.
Preparing a well-written and strong patent application is essential to obtaining the strongest patent protection for your invention. This is so because a patent application is similar to a deed of land in that the patent application sets the scope of protection for the invention just as a land deed sets the boundaries of a piece of land.
As such, hiring an experienced patent attorney to prepare your patent application is essential to obtaining the best and broadest protection possible for your invention.
If you don’t have the funds to hire a patent attorney, you should explore the option of hiring a patent agent to prepare your patent application for you.
Patent agents, like patent attorneys, are licensed by the USPTO to assist inventors with preparing their patent application, filing it with the patent office, prosecuting them, and communicating with the patent office on an inventor’s behalf.
As such, if you can’t hire a patent attorney, you may want to hire a decent patent agent because they are familiar with the process of patenting an invention.
Hiring one can save you a lot of money and time down the road by avoiding easy mistakes that you may make if you choose to prepare your patent application on your own.
Filing Your Patent Application with the USPTO & Paying the Applicable Fees
Once you or your attorney have prepared a patent application, it’s time to file your patent application. Filing can be done online using the USPTO website.
At the time you file a patent application online you will have to pay the associated filing fees and patenting fees.
Utility patent fees are typically much higher than design patent fees because utility patents are more complex and have more patent claims.
Design patents are less expensive than utility patents because an inventor can only claim one design per design patent application.
Since design patents only have one claim, they take less time to prepare and are therefore less costly than utility patents which can take a lot more time to prepare and file.
The patent office charges significantly lower fees when it comes to filing fees, search fees, and examination fees for design patents vs utility patents.
Checking the Status of Your Patent Application
Once you’ve filed your patent application, you should check the status of your patent application by using the USPTO PAIR system. The pair system has the latest and most up-to-date information about your patent application.
Make sure that you periodically check the status of your application as the patent examiner may have sent you information about your pending patent application.
You should check to see if the patent office has requested any information or requires changes/amendments to your patent application.
If the patent office requires some action on your part, you should contact your patent attorney and ask them to handle the matter for you in a timely manner.
How Much Does it Cost to Get a Patent?
We will now cover how much it costs to get a utility patent and how much it costs to get a design patent.
Utility Patent Cost
- Filing fees: $75
- Patent search fees: $165
- Patent examination fees: $190
- Attorney fees: $7,500 to $15,000+ (depends on invention)
- Utility patent issue fee: $250
Design Patent Cost
- Filing fees: $50
- Patent search fees: $40
- Patent examination fees: $150
- Attorney fees: $1,500 to $3,000
- Design patent issue fee: $175
Patent Rebel Comment: The costs associated with patenting an invention can vary depending on the complexity of your invention, how much assistance you’re offering the attorney preparing your patent application, as well as the geographic location of the attorney that’s assisting you with patenting your invention. Attorneys in different regions charge different amounts for their services.
How Long Does it Take to Patent an Invention?
According to data from the USPTO, it currently takes the patent office 24 months to process a utility patent application and it takes them 20 months to process a design patent application. When we say process, we mean it takes the patent office that much time to either grant or deny a patent application.
If you need to patent your invention as quickly as possible, the patent office offers two different services to expedite patent applications.
Expediting a Utility Patent Application
The patent office allows applicants of utility patent applications to expedite their patent application by applying for Track One. Track One service promises to either grant or deny a patent application within 12 months. However, there are some reports of the patent office granting patent applications within as little as 6 months by using this service. That said, to expedite a utility patent application, an applicant will have to pay an extra fee in addition to the normal patenting fees.
Expediting a Design Patent Application
Applicants can expedite a design patent application by filing a request to expedite their design patent application. The request to expedite a design patent application is known as Rocket Docket and can be made at the time an applicant files his design patent application with the USPTO. To use Rocket Docket, an applicant will have to pay an extra fee in addition to the regular patenting fees to obtain a design patent.
Why Are Patents Important for Inventors?
Patents are important to inventors because they allow patent holders to stop others from using, making, selling, offering to sell, and importing the patent invention to the United States for a limited period of time.
Utility patents grant these rights to a patent holder for 20 years. The 20-year patent term begins at the moment an applicant file a nonprovisional utility patent application with the patent office.
Design patents, on the other hand, grant these rights to a patent holder for 15 years. The 15-year patent term for a design patent begins at the time the patent office grants a design patent application.
During the patent term, a patent holder may be able to sell the patented item or object while controlling who sells any competing objects that function the same way as the product or object that the patent holder has patented.
This offers the patent holder an advantage over others by allowing him or her to exclusively profit from the sale of the patented invention.
Also, by patenting an invention, the patent holder can license the use of his invention to others in exchange for an agreed-upon royalty or fee. Patents make this process easier and more clear because the patent application lays out the scope of rights that the patent holder is allowing others to use.
As such, there are many benefits to patenting an invention. However, before spending the time and money to patent an invention, an inventor should consult with his own patent attorney to determine whether proceeding with the patenting process is worth it for his specific situation.
Frequently Asked Questions Patent Rebel Receives (FAQs)
1) Can you patent an idea or a concept?
The short answer is: no, you cannot patent merely an idea or concept. You much have something more concrete. To patent something, you have to be able to explain how it works or functions, as well as how it’s used.
To patent your invention, you invention must be something for which the patent office offers a patent, such as a machine, process, article of manufacture, composition of matter, or a design.
If your invention does not fall within one of these categories or one of the prohibited categories, the patent office will not allow you to patent it.
2) What is the difference between a utility patent and a design patent?
A utility patent protects how an invention works or the functional aspects of an invention. Design patents, on the other hand, protect the aesthetics or appearance of an invention. Said differently, design patents protect how an invention looks or appears.
An inventor should know which type of patent he or she needs because utility patents and design patents protect different aspects of an invention.
Some inventions can qualify for either a design patent or a utility patent and some can qualify for both types of patents.
That said, if you want to protect your invention with both a design patent and a utility patent, you will need to apply for each protection separately, meaning you’ll have to prepare and file both a utility patent application, as well as a design patent application.
3) What qualifies for a patent?
For something to qualify for a patent, it must have a patentable subject matter, meaning it’s something that patent law protects, such as a machine, process, article, formula, or design. Also, to patent something, it must be new and unique, meaning it’s different from anything that has ever been patented and anything that has been publicly disclosed or offered for sale more than 12 months before an applicant files a patent application with the patent office.
4) Can you patent a product that already exists?
No, you cannot patent a product that already exists and is offered for sale to the public. To patent something, you must be the original inventor of the item you’re seeking to patent. Also, to get a patent on something, it must not have been publicly disclosed prior to you filing a patent application. In the event that a product is already being offered to the public, you cannot patent it because it is not novel (new), but rather something that is already publicly available.
5) How do I find out if someone else has already patented the invention I want to patent?
You can find out of someone else has already patented the invention that you want to patent by conducting a prior art search. Said differently, you should conduct a search of the USPTO patent database to check whether someone else has already patented an invention that’s the same as or similar to the one that you’re seeking to patent. You should also perform a search of sources that could include inventions that are similar to yours. This is so because the patent office will not allow you to patent an invention that has already been patented before, nor will it allow you to patent an invention that has been publicly disclosed.
6) Can anyone see a patent?
Yes, if you successfully patent your invention, anyone can conduct a search of the USPTO database to see your patent. Once a patent holder’s patent expires, the public will be able to use, make, and sell the patented invention without having to obtain the patent holder’s permission. That said, if you don’t want your invention to become public, you should talk to an attorney and discuss other options or methods to protect your invention.
7) Does my invention qualify for a patent?
For an invention to qualify for a patent, an invention must have the following:
- Patentable subject matter
- Usefulness (Utility)
For a more in-depth explanation, read above as this article goes into great detail about the requirements for patenting an invention or design.
How to Get a Patent on Something?
According to Patent Rebel, to obtain a patent on something, such as invention, machine, process, composition, article, or design, an applicant should hire an attorney to assist him with the process of patenting his invention, especially if an inventor does not have experience patenting inventions.
To get a patent, an attorney will then conduct a prior art search to determine whether anyone has already patented the same invention. If no one has patented the same invention or improvement, the attorney will then proceed to preparing a strong patent application, filing it with the patent office, paying the applicable fees, and prosecuting the patent application.
If you have any general questions or comments, please feel free to leave them in the comments section below. Please remember that we are only offering general legal information, to know more about your specific situation, you should contact a licensed patent attorney in your jurisdiction.