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How to Get a Patent: A Guide to Securing Your Invention with a Patent

Trady

Trady

14 June 20249 min read

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How to Get a Patent: A Guide to Securing Your Invention with a Patent

So, you've dreamt up a brilliant invention – something innovative and potentially game-changing. Congratulations! 

But how do you ensure others don't steal your idea and reap the rewards? The answer lies in patents. 

Securing a patent grants exclusive rights over your invention for a predetermined period, which offers a strategic advantage in the market and enables you to monetize your innovation effectively.

This guide will help you with the knowledge to navigate the process of getting a patent. We'll delve into the essential steps, considerations, and potential challenges you might encounter.

Understanding the basics of patents

Before diving in, let's establish a strong foundation. Here are some key concepts to grasp:

What can be patented? Not everything qualifies for patent protection. Inventions must be novel (new and not previously disclosed), non-obvious (not something an ordinary person in your field would have easily figured out), and useful (have a practical application).

There are three types of patents: 

  • Utility patents
  • Design patents
  • Plant patents

(We’ll go into more detail about these in the next section.)

Patent term: The duration of patent protection varies depending on the type of patent. Utility patents typically have a duration of 20 years starting from the date of filing.

Determining the type of patent you need

The different types of patents

Choosing the right type of patent is crucial for effectively protecting your invention.

Here's a breakdown of the three main types and how to determine which one is best for you:

  • Utility patents: If your invention is a new and functional machine, process, article of manufacture, or composition of matter, then a utility patent is likely the best option. 

This covers various inventions, from smartphones and medical devices to chemical compounds and software. Ask yourself: Does my invention perform a specific task or solve a technical problem? If so, a utility patent is the way to go.

  • Design patents: If your invention focuses primarily on the ornamental design of an article rather than its functionality, then a design patent is the way to go. This could be the unique shape of a product casing, a distinctive furniture design, or even a particular pattern on a fabric. 

Does your invention have a new and original visual appearance that distinguishes it from existing products? If design is the key element you want to protect, then a design patent is the right choice.

  • Plant patents: If your invention is a new and distinct variety of asexually reproduced plants, then a plant patent is for you. This covers new varieties of flowers, fruits, vegetables, and even trees that are not naturally occurring but have been created through human intervention.

Have you cultivated a new variety of roses with unique flower colors or a particularly disease-resistant strain of corn? If so, a plant patent can protect your innovation.

By correctly identifying the type of patent that aligns with your invention, you can ensure your application is directed towards the appropriate legal category and increases the chances of securing successful patent protection.

Want to understand the patent filing process? Read our article “Patent Filing 101: Simplifying the Patent Filing Process.”

The patent process: A step-by-step guide

The patent process

Now, let's get down to business! Here's a breakdown of the patent application process:

1. Document your invention

Proper documentation establishes your claim as the inventor and sets a date of invention, which is crucial in the patent process.

What to include:

  • Detailed drawings: These should offer precise visual representations of your invention from various angles and include dimensions, assembly details, and component lists, if applicable.
  • Written descriptions: A comprehensive description that explains what the invention is, how it works, the problem it solves, how it differs from existing inventions, and how it can be manufactured. The description should be informative to enable someone with expertise in the field to reproduce the invention.
  • Prototypes: A prototype can provide a physical proof of concept that can be examined for functionality and design.

2. Conduct a patentability search

To determine if your invention is novel (new) and non-obvious, which are required for patent eligibility.

Steps:

  • Initial search: Utilize the USPTO's online databases to search for existing patents and published patent applications. This includes searching international patent databases if applicable.
  • Technical journals and other publications: Besides patents, search through relevant technical and industry journals that might disclose similar technologies or concepts.
  • Consultation with professionals: Given the complexities of patent databases and legal nuances, hiring a patent attorney or agent is advisable. They can perform a more thorough search and interpret the results accurately, providing insights into your invention's patentability.

Looking for a patent attorney? Check out Patent Express by Trademarkia and get in touch with one of our legal experts today. 

3. Decide on legal representation

Navigating the patent application process can be complex due to the legal and technical requirements involved.

Options:

  • Patent attorney: A lawyer specializing in IP law and licensed to practice law. They're equipped to offer legal counsel, prepare legal documents, and represent you in negotiations or court proceedings.
  • Patent agent: Although not a lawyer, a patent agent is qualified to draft patent applications and represent clients before the USPTO. They typically have a strong technical background.
  • Self-representation: While you can file a patent independently, the risk of making costly mistakes can be high. Legal representation is recommended, especially for more complex inventions or if the patent will be a significant component of your business strategy.

But what are the benefits of professional help? Let’s explore the top three: 

  • Expertise in drafting: Professionals can draft claims and descriptions that effectively cover your invention's scope and technical specifics.
  • Navigating the process: They can manage the submission of all necessary documents, respond to USPTO queries and objections, and handle other procedural details.
  • Strategic advice: They provide strategic advice on managing your patent portfolio, dealing with potential infringements, and leveraging your IP rights.

4. Prepare the application

Preparing a patent application is a meticulous process that involves several key documents:

  • Petition to the USPTO: This is a formal request to the United States Patent and Trademark Office asking for a patent to be granted to the inventor. It includes basic information about the inventor and the type of patent being applied for.
  • Specification: This document is the core of the patent application and must be detailed and precise. It includes:
    1. Title of the invention
    2. Cross-reference to related applications (if any)
    3. Statement of federally sponsored research/development (if applicable)
    4. Background of the invention: This section describes the invention's field and discusses its background to set the stage for its technical contributions.
    5. Summary of the invention: Briefly outline the invention and its function, highlighting its improvements over prior art.
    6. Detailed description: Provides a full, clear, exact description of the invention and its use. This should be so comprehensive that someone skilled in the art could duplicate the invention.
    7. Claims: This is the most critical part of the application. The claims establish the limits of patent protection and need to be precisely formulated to encompass the full scope of the invention.
  • Drawings: Where necessary, you must include drawings that clearly show every feature of the invention specified in the claims. These are used to understand and visualize the invention.
  • Oath or declaration: A statement by the inventor claiming to be the original inventor of the application and acknowledging the penalties of perjury.

5. File electronically or by mail

  • Electronic filing: The USPTO's Electronic Filing System allows patent applications to be filed online securely. This method is preferred because it's faster and cheaper and ensures that the materials are directly entered into the USPTO's system. It also allows for immediate confirmation of receipt.
  • Filing by mail: While less common now, applications can still be filed by mailing them to the USPTO. This method is slower and has additional risks associated with mail handling and delivery times.

6. Application examination

The examination phase is a critical part of the patent application process, where the patent office assesses your application against various criteria to determine if a patent should be granted. 

After your patent application is filed, it enters the queue for examination at the United States Patent and Trademark Office (USPTO). Here's what happens:

  • Assignment to a patent examiner: Your application will be assigned to a patent examiner specializing in your invention's relevant technological field. The examiner must scrutinize your application to ensure it meets legal and technical standards.
  • Initial examination: The examiner reviews the application thoroughly. This review includes a detailed examination of the specifications, claims, and drawings to ensure they comply with the USPTO's stringent requirements. The examiner also conducts a search for prior art (previously known products, patents, and publications) to assess whether your invention is novel and non-obvious.
  • Evaluation against patentability criteria: Your invention must meet several criteria:
    1. Novelty: The invention must be new.
    2. Non-obviousness: The invention must not be obvious to someone with knowledge and experience in the subject area.
    3. Usefulness: The invention must have some utility or be operable, which must be demonstrated in the application.

7. Possible office actions

During the examination, the patent examiner might find issues with your application that need to be addressed:

  • Office actions: These are formal communications from the USPTO, often pointing out problems with the patent application. There are two types:
    1. Non-final office action: This typically raises issues for the first time, allowing the applicant to respond. It might include rejections based on prior art or other legal issues. The examiner may also request clarifications or modifications to the claims or descriptions.
    2. Final office action: If the examiner is unsatisfied with the applicant's response to the initial non-final office action, they may issue a final office action. Here, the applicant has fewer options to respond and may need to appeal the decision or amend the claims further to overcome the examiner's rejections.

8. Responding to office actions

If you receive an office action, it's essential to respond adequately to continue the pursuit of patent protection:

  • Response strategy: Work with your patent attorney or agent to craft a response. This might involve amending the claims to narrow their scope or distinguish them from prior art, arguing against the examiner's rejections, or submitting additional information to support your case.
  • Amendments: Any changes to the application must not introduce new matter that was not disclosed in the original filing.
  • Deadlines: Responses to office actions typically have strict deadlines (e.g., three months for a non-final office action), which can be extended for a fee.

9. Patent grant (or denial)

The USPTO will grant you a patent if your patent application meets all the legal and technical criteria. 

This decision comes after a thorough examination process, which includes checking your invention for novelty, non-obviousness, and utility, among other requirements. 

Here are the critical aspects of the patent grant:

  • Issuance of patent: Once your application is approved, the USPTO issues a patent document, which is a formal record stating that you have been granted a patent. This document provides the details of the invention and its claims, defining the scope of protection.
  • Exclusive rights: The primary benefit of having a patent is the exclusive rights it confers. This means you have the legal authority to prevent others from making, using, selling, or importing your patented invention without your permission within the United States or other countries if you also have patent protection.
  • Duration of patent: Utility patents typically grant rights for 20 years from the original application filing date, while design patents grant rights for 15 years from the grant date.
  • Maintenance fees: To keep the patent rights in force, periodic maintenance fees must be paid to the USPTO at 3.5, 7.5, and 11.5 years after the patent grant.

However: 

Not all patent applications result in a patent grant. Here are the steps and options available if a patent application is denied:

  1. Initial rejection: Most patent applications receive at least one initial rejection. This rejection might cite prior art or note issues with the invention's patentability. You can respond by amending claims or arguing against the examiner's findings.
  2. Final rejection: If the examiner is unsatisfied with the response, they may issue a final rejection. You can still respond to a final rejection, typically by requesting continued examination (RCE) or by appealing the decision.
  3. Appeal: If your application is rejected, you can appeal the decision to the Patent Trial and Appeal Board (PTAB). This involves a detailed review of the application and the rejections cited by the examiner.
  4. Further appeal: If the PTAB decision is unfavorable, further appeals can be made to the U.S. Court of Appeals for the Federal Circuit or even to the U.S. Supreme Court, though such cases are rare.
  5. Potential for revision and re-application: Sometimes, if a patent is denied and there seems to be no viable path forward through appeals, the applicant may choose to revise the application significantly and reapply, addressing the issues cited in the rejection.

10. Maintaining your patent

Once you have a patent, it's essential to maintain it by paying maintenance fees regularly throughout the patent term. 

Failure to do so can result in the patent lapsing.

Beyond the basics: Important considerations

  • Provisional applications (optional): Consider filing a provisional application if you need more time to develop your invention but want to establish an early filing date. However, a provisional application does not mature into a patent by itself. You must file a complete non-provisional application within one year to proceed.
  • International patent protection: If you plan to commercialize your invention internationally, you must file patent applications in each country where you seek protection. This can be a complex process, and consulting with an attorney specializing in international patent law is highly

A patent search is a critical step in the process of innovation and intellectual property protection. 

It involves thoroughly investigating existing patents and published patent applications to determine if an invention is novel and non-obvious. 

This search helps inventors and companies avoid infringing on existing patents, leading to costly legal disputes and impeding the commercialization of new technologies. 

Additionally, a comprehensive patent search can provide insights into current technological trends and gaps in the market, guiding strategic decisions about research and development.

Conducting an effective patent search requires accessing multiple databases, such as those maintained by:

  1. The United States Patent and Trademark Office (USPTO), 
  2. the European Patent Office (EPO), 
  3. And the World Intellectual Property Organization (WIPO). 

These databases include detailed records of issued patents and published applications that can be searched by various criteria, including inventor name, keywords, and classification codes. 

Professionals often utilize specialized search software and sometimes engage patent attorneys or search firms to ensure the search is exhaustive. 

The results of a patent search not only inform the patent application strategy but also influence product development and marketing plans.

Securing your innovation for success

Obtaining a patent can be an empowering experience for inventors. It validates your creativity, grants you control over your invention, and opens doors to commercialization opportunities. 

By following the steps outlined in this guide and considering the valuable insights provided, you'll be well-equipped to navigate the patent process and secure the protection your invention deserves. 

Remember, this guide offers a general overview.

Patent laws and procedures can vary depending on your jurisdiction. 

Consulting with a registered patent attorney or agent specific to your location is highly recommended for personalized guidance throughout the process.


FAQs

How much does it cost to get a patent?

The cost of obtaining a patent can vary depending on several factors, including the complexity of your invention, the number of claims in your application, and whether you hire a patent attorney or agent. 

USPTO fees typically range from a few hundred dollars to several thousand dollars. Attorney fees can vary significantly depending on their experience and the complexity of your case.

How long does it take to get a patent?

The timeframe for obtaining a patent can vary considerably. It can take anywhere from 12 to 36 months from filing your application to receiving a patent grant.

Can I keep my invention a secret instead of getting a patent?

While you can maintain secrecy around your invention, it may not be the most effective strategy. If someone else independently develops the same invention and obtains a patent, you may be barred from commercializing your idea. 

A patent grants you legal protection and provides a public record of your invention.

What happens after my patent expires?

Once your patent expires, your invention becomes public domain. And anyone can sell, make, or use it without your permission.

Can I patent an idea?

In general, abstract ideas cannot be patented. However, if you can translate your idea into a tangible invention with a practical application, then it might be patentable.

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AUTHOR

Meet Trady, Trademarkia's AI "Creative Owl" and the whimsical author behind our blog. Trady isn't just any virtual writer; this lively owl combines inventive wordplay with a deep understanding of trademark law. By day, Trady dives into the latest trademark filings and legal trends. By night, it perches high, sharing trademark wisdom and fun facts. Whether you're a legal expert or a budding entrepreneur, Trady's posts offer a light-hearted yet insightful journey into intellectual property. Join Trady and explore trademarks with wisdom and playfulness in every post!