You’d think we’d be at a point where there’s nothing left to be invented. And yet, there were 443,923 patents granted in 2015.
Maybe you’ve had your own idea rattling around in your brain. To ensure you have exclusive rights to your big idea for 20 years, you’ll need to get a patent. However, the patent application process can be confusing and expensive. (The U.S. Patent and Trademark Office has a webpage devoted to the patent process, but unless you speak “government,” it can be hard to wade through.)
So, we’ve broken it down and simplified the steps for you.
Step 1: Know your options
The first step to getting a patent is something not even listed on the U.S. Patent Office page. However, it could be the most important step. You need to understand your options and select the one that is going to best protect your idea at a price you can afford.
There are three ways to file for a patent:
- DIY patent applications in which you do everything yourself.
- Third-party software that walks you through the process for a fee.
- Patent attorneys who charge an arm and a leg but may be worth the cost.
If you want to go the DIY route, you can still get help. There are Patent and Trademark Resources Centers in virtually every state, and the staff at these centers can provide free guidance on the patent process. However, don’t expect them to be able to answer legal questions or fill out an application on your behalf.
The next step up would be to use third-party software to walk you through the process. Think of it as TurboTax for patents. They may ask you a series of questions, then fill in an application template and submit it electronically on your behalf. Nolo and LegalZoom are two websites offering this service for a fee.
Finally, there are the big guns: patent attorneys. These professionals aren’t cheap, but if you truly think your idea has big moneymaking potential, you may want to hire one. A patent attorney will make sure all the details are correct, and reduce the chances of someone else sweeping in and stealing your idea on a technicality.
While an attorney can make the patent application process easy on your end, expect to pay thousands for their services. According to patent attorney Scott Smiley of Concept Law, fees can range from $5,000 for a simple idea to more than $10,000 for a highly complex one.
That said, individuals meeting certain income and invention requirements may be eligible for a free attorney through the Nationwide Pro Bono Program.
For those who aren’t eligible, there are nearly 32,000 active attorneys with licenses to practice before the U.S. Patent and Trademark Office, and you can search online for one near you. In addition, Inc. magazine has some tips on how to pick the right professional.
If you decide to use an attorney, you can skip down to Step 6. Your lawyer will handle it. For everyone else, keep reading.
Step 2: Search existing patents
Once you decide to go the DIY route or use a fill-in-the-blanks software program, your next step is to search existing patents to see if your idea is already taken.
You can search for existing patents on the USPTO website. Note that the office has a 36-minute tutorial on how to conduct a search. That may seem like a long time to spend on a tutorial, but it’s probably better than trying to decipher the search options and results on your own.
If you don’t find a patent for your idea, you can move on to Step 3. But first, confirm that your idea is indeed patentable. Patentable items fall into these categories:
- Article of manufacture
- Composition of matter
- Improvement to any of the above
However, your patent idea must be nonobvious and useful, which means items with no discernible purpose aren’t eligible. You can’t patent an abstract idea, work of art, law of nature or physical phenomenon.
Step 3: Decide whether to disclose your idea first
In the past, the first person to create an invention or come up with a patentable idea was entitled to the patent. All that was needed was for the applicant to provide documentation of the invention date, which could be as simple as jotting the idea and date in a notebook and having a witness sign the page.
That changed in 2011 with the passage of the America Invents Act. Under the new law, the patent now goes to the person who files first, unless someone else has already publicly disclosed the idea. In that case, the person who has published the idea has one year to file for a patent.
If you think someone else might jump on your idea, but you’re not quite ready to file for a patent, you could publish your concept on a blog or elsewhere in the public square. Another option would be to file a provisional patent, which also gives you a year to turn your application into a final, nonprovisional one.
TechCrunch offers more tips to help you decide the best route for your idea or invention.
Step 4: Complete the patent application
Now we get down to the nitty-gritty of the process. It’s time to fill out the paperwork and submit it for review.
This is where your patent attorney earns her or his keep because there is no standard patent form.
At a minimum, a patent application must include:
- A written description of the invention.
One or more “claims.” The claims are the meat of an application. They define, in technical terms, the details of an invention, such as how it is made and what it does. It’s vital the claims be written correctly because they’re used to determine what part of an invention is legally protected should a patent be granted.
- One or more drawings, if needed.
The more exact you are in your claims, the better you will protect your invention. Nolo.com has some sample claims for common objects so you can understand how they are structured. You can also view an example provisional patent at PatentFile.org.
Many applications include much more information than the minimum requirements. They may include such items as an abstract, an oath from the applicant attesting that they believe themselves to be the original inventor, and other literature.
Then it’s time to wait. It can take two to three years or more for the USPTO to review a nonprovisional patent application and make a final determination. A limited number of expedited applications are allowed each year as well.
Remember, if your application is for a provisional patent, you only have a year to finish the process and submit your nonprovisional application.
Step 5: File a request for reconsideration, if needed
More than 90 percent of patent applications are rejected initially, according to Inventorprise Incorporated, Common rejection reasons include:
- More than one invention included on an application.
- Invention is already subject to an existing patent.
- Subject matter is nonpatentable.
- Invention is obvious, making it nonpatentable.
- Incorrect claims language.
If you receive a rejection, you can send a reply with corrections or clarifications and ask for a reconsideration. If that doesn’t persuade the Patent Office to reverse its decision, you can file an appeal with the Patent Trial and Appeal Board.
Step 6: Pay government fees
Once you receive notice from the government that your patent application has been accepted, it’s time to pay up and send in the issue fee. (Here’s a fee schedule.) If you haven’t already, you’ll also need to submit an oath or declaration that you believe yourself to be the original inventor of the item.
Step 7: Receive your patent
Whew! You’re done!
The patent will last for 20 years from the date it’s granted and allow you exclusive rights to manufacture and market your product. But don’t forget to pay the required maintenance fees. They are due 3.5, 7.5 and 11.5 years after the patent is issued.
I won’t tell you a patent application is simple, but it’s certainly doable. Make good use of available resources such as those Patent and Trademark Resources Centers. And don’t despair, or give up, if your initial application is rejected.
Once you have your patent in hand, read this article on how to make money with your invention.
Have you applied for a patent before? Share your experience in the comments below or on our Facebook page.