Do you have an idea but have no clue how to patent that idea? You are not alone. Navigating the world of patents can be incredibly frustrating and time consuming. The process is not easy and when you are a new inventor, the application requirements seem daunting. To help you get started, we put together this ultimate guide on how to get a patent. It answers the most common patents questions we've gotten asked as a product development company. At Synectic, we do not assume to take the place of sound legal counsel and, before pursuing any patent application, we strongly recommend consulting an attorney. This guide is merely meant to answer common questions we receive. If you already have a patent and don't know what to do next, check out our guide on choosing a product development company.
In this guide we'll cover:
A patent is the grant of property rights, by the federal government, to someone for a specific period of time. It protects your invention, preventing anyone other than you, the inventor, from reproducing, altering, or selling it while the patent is active. In other words, it protects your invention from being stolen and prevents someone from making money off of your idea. If someone does violate your rights, you can take legal action against them. In the United States, patents are handled by the United States Patent and Trademark Office (USPTO) who grants them to inventions that meet specific criteria.
You can patent anything that falls into one of these categories:
- Process or method
- Manufactured article
- Composition (such as a pharmaceutical drug)
- Variety of plant
If it does not fall into one of the above categories then you may not need one. For example if you developed a website, service, or mobile app, those things are not patentable. You also can't patent things like naturally occurring substances or mathematical formulas. Some additional requirements include: it must be novel (new), useful, and not obvious.
When inventors come to us with their idea, we generally ask one question before getting started: Is your idea patentable? A lot of times, excited inventors want to jump into product design before getting all their ducks in a row, leading to issues later. Before getting started sit down and really ask yourself if your idea a. falls into the one above categories and b. if it is a new idea. Even if you may think you have a new idea, it may not be. A detailed patent search is your next step, which we will cover later in this guide.
There are three types of patents: utility, design, and plant. Each of these have their own criteria and provisions. In the design and development world, we only deal with the first two types.
- Utility patent - these are the most common type and are granted to inventors of a new manufacture, process, composition, or machine. They also can be granted to people who improve upon an already existing manufacture, process, composition, or machine. They cover everything from manufactured goods, to technical processes, to chemical compounds.
There are two subsections of utility patents: business method patent and software patent. Business method patents are awarded to persons who invent a new method for conducting business. A common example of this is Amazon's "1-click shopping" option. Software patents can be awarded to inventors of a new type of software that passes the "machine or transformation" test. Both of these subsets can be difficult to obtain as many times they fall under the "abstract idea" umbrella and as such are prohibited from being patented.
- Design patent - these are given to those who invent a new aesthetic design of a product and are commonly seen in industrial design. This can include a shape, configuration, or non functional part. The design itself must not be able to be separated from the object it is on. However, a design patent only protect's the objects appearance and not it's function or features. Those would be covered under a utility patent.
- Plant patent - these are awarded to persons who invent a new type of plant. To qualify the plant must be asexually reproduced, cannot be a tuber propagated plant, such as a potato, and was not discovered in an uncultivated state.
Unlike copyrights that can last for decades and trade secrets that can be protected indefinitely, patents generally last for 20 years or less.
The type of patent you hold does affect how long it is enforceable. Utility and plant patents both last for 20 years for the effective filing date of the application. However a design patent last for 15 years from the date the patent was granted.
The filing date also matters. For utility patents filed on or before June 8, 1995 the patent term is 17 years. Design patents filed on or before May 12, 2015 have a term of 14 years. Keep in mind that in order to keep your utility patent active you must pay maintenance fees at the 3, 7, and 11 year marks. If these fees aren't paid, the 20 year duration is null and void.
First you need to decide if you want to perform the search yourself or if you want to invest in paying a qualified attorney to do the search for you. If you decide to pay someone else, the costs can be anywhere from a couple hundred dollars to a couple thousand dollars. Depending on how complex your invention is, this may be worth the money.
You can of course perform your own search for free using the USPTO's website, but it may not be as straight forward as it seems. There's a reason they have an almost 40 minute tutorial on how to use their databases. This is because they have patents going back to the 1700s and things, like changes in terminology, can affect how you go about performing a search. This is also why you should be wary of solely relying on Google's patent search as it is not a perfect system either. Luckily, we break the tutorial down for you:
- Come up with a list of terms that describe your invention
- Go to the USPTO's classification system index and determine which class or subclass each of your terms falls under.
- Verify the relevancy of each class you came up with in step 2. To do this, enter each classification into the USPTO's classification schedule database and cross check against its definition.
- Search for the class under the PatFT database and retrieve all relevant patents, documents, and images related to that class.
- Review each patent in depth for similarities between your invention and theirs. Make sure you review all drawings, the specifications, and the claims.
- Repeat step 4 and 5, but this time in the AppFT database. Again, remember to review all documents, sections, and drawings carefully.
- Do a keyword search of the terms you came up with in step 1 in both the PatFT and AppFT databases. This is to cover any items you may missed during your previous searches.
There, that's our easy step-by-step guide to doing a patent search. You can see why if you are inexperienced, successfully navigating this process could be difficult.
Before we get started, know that patents are territorial so you must reapply in each country where you want your invention to be protected. Each country has it's own criteria, requirements, and application process. Here we will cover the application process in the United States.
As we previously mentioned at the start of this guide, in the United States, the United States Patent and Trademark Office (USPTO) issues patents. To apply for a one online you must do so through their electronic filing system, EFS-Web. There are several documents you will need, depending on the type and the complexity of your invention. At the very least, you will need:
- Specification - The specification is a detailed written description of your invention and how it works. It needs to be written in such a way that a person with similar knowledge and background could recreate your invention.
- Claims - Claims define, in specific legal language, what your invention does. These are the only part of the patent that are enforceable.
- Drawings - These are drawings of your invention that detail your invention and how it works. They must reference all elements that are defined in the claims section.
Before you even attempt to file your application, be sure to have all your research completed and documents ready. If all documentation is not completed, or is completed incorrectly, your application will most likely be rejected. Other reasons for rejection include insufficient detail or the invention is too obvious. This is where a good patent attorney can come into play to help you avoid being rejected or assist you in altering your application to align more with what's required. Since the claims need to be written in extremely specific language, it is easy to trip up on this aspect of the application.
There is no such thing as a provisional patent. There is however, a provisional patent application. This is a legal document that secures you a filing date, and thus patent rights, while you work on and finalize your invention. It does not mature into a full fledged patent unless you file a regular patent application within one year. Commonly referred to as "patent pending", provisional patents are granted for a year and expire after that year is up. Provisional patents are not full patents and you cannot submit a provisional patent application in lieu of a formal patent application. Unlike regular patents, provisional patents are not examined and therefore do not incur the same fees, offering a low cost option that can buy an inventor time. Furthermore, they do not disclose your invention to the public, so if development stalls, you do not risk having your idea stolen by someone else.
Depending on the complexity and type of invention, costs can vary widely. There are filing fees paid to the USPTO to file and maintain your rights throughout the life of the patent. Filing fees can vary, but you can check the current fee schedule on the USPTO website. There are also attorney fees to consider, which can vary from a few thousand to tens of thousands of dollars. Yes, you can go through the process without an attorney, but we strongly advise against it. Navigating the patent landscape is a long and difficult process and without the right knowledge and tools you could find yourself lost along the way. A good patent attorney, in this instance, is well worth the money.
Once you have your patent you may need to pay maintenance fees to keep it active. This is the case for utility patents but not design and plant patents. Maintenance fees are paid at the 3, 7, and 11 year marks and can range from $400 to $2,000 depending on year mark and entity classification. If these fees aren't paid, then your patent and rights to your own idea will expire.
On average it takes around 22 months to get a patent approved. There are instances where you can be eligible for the prioritized patent examination program, also known as Track One. With this program your patent will be awarded within 12 months and in some cases dispositions have been given in as little as 6 months. However there are some hangups to this program. For one, it is not free and can set you back between $1,000 and $4,000 on top of all the regular filing fees. Also, only 10,000 applicants are accepted into the program each year.
Ready to apply for your patent? Synectic can help you navigate this process as well as the design and development of your product. Find out how we can help your project and get your invention off the ground. Contact us and get started today.