Imagine you have a true million-dollar idea. You know, a real world-changer. What would you do? Throw it on Shopify and start selling ASAP? Bury all evidence in the woods behind your house? You might want to protect your intellectual property by getting a patent.
Consider the case of Elisha Gray, the inventor of an apparatus that could transmit speech electrically—the telephone. When Gray’s lawyer got to the patent office, he found that the very same day, a man named Alexander Graham Bell—who’d eventually found AT&T on the back of his handy invention—had patented the same idea.
You can avoid being like poor old Elisha, and file a patent before it’s too late. Doing so can protect your future business, make it easier to one day sell, and even make you ongoing revenue through licensing.
And yet…you might not want to. As you’ll see, the process of applying for a patent is technical, complex, and honestly, dull. The cost can balloon into the tens of thousands, and it often takes years. Furthermore, you might be able to corner your market much more easily with great branding and customer service.
All of this is to say, it is a decision you should take very seriously, carefully weighing your costs and benefits. In that spirit, we’ve broken down for you here exactly what it takes to get a patent, and what you need to do to pull it off, including some advice from legal experts.
Who knows, you may end up founding the next AT&T in the process.
How Patents Work
Patents are government-granted exclusive rights that a company or individual has over a product. They let you profit from and manage the way your product is used, marketed, and sold, but only for a specific period of time—often 20 years.
Patents protect the intellectual property of your idea, giving you immunity over competitors who may want to profit from it as well. When a competitor violates such IP, you can enforce the appropriate use of it.
The owner of a patent can, however, license the patent to third parties. The owner can also sell the rights to the invention to a third party, making it the new owner of the patent with the same benefits the original inventor had.
After the time period expires, the protection ends, and the invention belongs to the “public domain,” which means anyone can use the invention as they see fit without worrying about patent infringement.
Patents Aren’t All Alike
While the principles just explained are all pretty much the same in all countries, each one has its own patent laws, which can vary depending on the product, what can qualify for a patent, and the way a patent is enforced.
To simplify matters, we’ll focus this article on the patent-filing process for the United States. At the end of this article, you will see some resources for other countries.
The American patent office is called the “United States Patent and Trademark Office” (USPTO), and it belongs to the U.S. Department of Commerce. Its goal is to “grant patents for the protection of inventions and to register trademarks. It serves the interests of inventors and businesses with respect to their inventions and corporate products, and service identifications.”
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Can You Patent an Idea?
The short answer is: yes!
The key aspect of patenting an idea is that you need to prove to the USPTO that your idea is worth patenting. If you can convince the officers at the patent office that your idea is unique and valuable, you will be able to patent it.
On the other hand, if you only have an “idea” and it doesn’t meet some key criteria in terms of its use and originality, then you won’t be able to get a patent. The USPTO wants people who have some unique idea to protect to get a patent, not amateurs who want to make a quick buck off a half-baked concept.
Four Types of Patents to Get
In the definition I gave above, I focused on the most common idea of a patent—one that focuses on a product, like the telephone. But the reality is that there are four types of patents:
- Utility patents: Granted to anyone who invents or discovers a process, a product, a machine, a “composition of matter,” or any new and useful improvement thereof
- Design patents: Granted to anyone who invents a new, original, and ornamental design for an article of manufacture
- Plant patents: Granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant
- Software patent: Granted to anyone who invents a piece of software
Below, I will show you how the patent-filing process works for utility patents. If you’re an ecommerce entrepreneur who wants to develop a new product, then this is the patent to file.
Design and plant patents are, for the most part, highly specific and not relevant for our case. Finally, if you plan to patent software, the requirements to file a patent will vary, but the main ideas will continue to apply as the utility one.
Patent ≠ Copyright ≠ Trademark
A patent isn’t the same as copyright or trademark.
A trademark is “any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.”
If your company has a unique process with a unique name that you want to protect, you can trademark its name so no one can copy it.
A good example of a trademark would be if we wanted to protect the name of our courses, or if you wanted to protect the name of your company.
Copyright, on the other hand, “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”
In other words, a copyright is like a patent for the arts. If you want to protect your software code, then a copyright could be a good idea. Otherwise, if you have a marketable product idea, a patent is your only choice.
We’ve already covered how to develop a trademark before, so if you’re interested in that, check our article out.
Quick Note: Get a Specialist
Though this article is about how to file a patent, the process can be quite complicated and the final step requires a lawyer. So it’s a good idea to think about talking to a specialist at some point in the process.
The entire patent filing process can overextend most non-technical people. Even if you are a lawyer, unless you’re experienced with patents, you will have a hard time following every procedure.
Most importantly, you won’t be able to file it because, as Michael Cohen explains:
The patent process is so particular in regards to the procedure, that in the US only attorneys that pass a separate bar exam, the Federal Patent Bar, can file patent applications.
When I asked him what increases the chances of getting your patent accepted, he said:
While I may seem biased to say so, the truly best way to increase the odds of approval is by hiring an experienced patent attorney to prepare and oversee the entire process of the patent application.
There are hundreds of patent law experts in every country in the world. Before you start working on your patent filing procedure, start researching in your area for a patent lawyer (or firm) who can help you. Be sure to ask for some references. You will want to speak with other people who have gone through your process to see how that firm helped them file their patent.
How to Get a Patent
The process of getting a patent is technical, complex, and tedious. It takes a whole lot of steps that can span over a period of many years, cost thousands of dollars, and cause more headaches than you’d want to deal with.
But it doesn’t have to be like this if you know how the whole process works.
I asked Michael Cohen, the principal attorney from the Los Angeles-based firm Cohen IP Law Group, to walk us through the whole patent filing process. Here’s how he summarized it:
The patent filing process, what practitioners call “patent prosecution,” isn’t an overnight process or even a short process; it can take quite a long time—with an average of 3 years to get a utility patent.
- The initial preparation of the patent application could take weeks or even months depending upon the complexity, who is drafting it, whether the inventor can provide sufficient information to adequately disclose the invention.
- After it is prepared it is then filed with the United States Patent and Trademark Office (USPTO). The actual filing is quick and typically done electronically, and you will immediately receive a patent serial number which means the invention is “patent pending.”
- Thereafter, the application is not typically reviewed by an examiner for about one year or longer.
- Once it is reviewed, the examiner routinely rejects the application in what is called an “office action.”
- A response needs to be made by the applicant or attorney; otherwise, the application will become abandoned.
- A second or third rejection is not uncommon as well, so with the back and forth between the applicant and examiner, and the wait times in between lead to an average prosecution time of around 3 years.
The USPTO does offer expediting services for additional fees and if certain requirements are met, which can dramatically reduce the time period to about 1 year.
With this basic overview of the patent filing process, let’s go through the actual steps you’ll need to take to get a patent in the United States.
Step 1: How to Do a Patent Search
The first step towards getting a patent is to search the United States Patent and Trademark Office’s patent database to find similar ideas that have already been patented. On their homepage, hover over the “Patents” button and click on “PatFT.”
Then, you will be directed to a very modern and cutting-edge search database (not) that will help you find past patents.
Under “Term 1,” add a term related to your product.
The results will likely bring many results. It’s best you try multiple different terms until you get close to your idea.
Since there are many results in there, and many won’t be related to your product, you may need help from an expert to help you research your space.
In the meantime, you can open up existing patents, analyzing the descriptions, and most importantly, the images that show the product itself.
For example, the first result from the list leads to this patent from Reebok:
Throughout the page, you will see the entire description of the product, likely to be much too technical for your taste. To get a clearer view of the patent, scroll down to the bottom and click on “Images.”
Then, you will see a mockup of the design behind the patent, which in this case is a type of sole for a sports shoe.
Not the best image, for sure, but at least it helps you get an idea of the patent.
As you carry on your research, take note of the similarities and differences between your product idea and other patents. Most likely, you will find inventions similar to yours. If that’s the case, you will have to come up with a good explanation for why your invention is better than, or at least different from the ones that you found.
Step 2: Choose Your Patent-Filing Process
The patent-filing process varies according to whether you’re filing for a provisional patent application (PPA) or a regular patent application (RPA).
A PPA allows you to claim “patent pending” status for the invention. On its own, such status isn’t as effective as having a real patent behind your idea, but the main benefit is that it requires much less work and money than an RPA. What’s more, the status helps you build credibility over your product.
To file for a PPA, all you need is:
- Pay a fee, which goes from $65 for “micro-entities“ to $130 for small entities to $260 for large companies (more information on these categories here)
- Give a detailed description of the invention
- Explain how to use it
- Give an informal drawing
An RPA, on the other hand, comes with a barrage of filing requirements, which I will explain in Step 5. Some experts recommend starting with a PPA while you work on your RPA. Stephen Kay, who has patented over 20 ideas, recommends this because:
- They’re cheaper to file
- You protect your idea for 12 months
- You can test the idea in the market
- You will have time to prepare your documents and improve your “pitch” to the USPTO
Michael Feigin, a patent attorney from New Jersey-based Feigin & Fridman, recommends otherwise:
Filing for a PPA sounds like a cost saving to file a provisional patent application, but it’s usually not because it means you’re filing twice.
The first time, you’ll be filing something less than complete, only to pay your attorney to do it a second time the right way. You could just file one patent application which is full and complete at the outset.
What’s more, filing a provisional tends to show a lack of direction or seriousness. There are limited circumstances where they’re useful (e.g. you want to get something filed before you have to make a public disclosure and there isn’t much time) but I generally do not recommend them.
What all this evidence seems to point to is that unless you’re desperate to get some kind of patent over an idea that others may be working on, it’s best to put all your efforts into getting an RPA, a process I will outline in the following steps.
Step 3: Make Sure Your Patent Idea Is Eligible
As excited as you may be about your idea, only a few types actually qualify for a patent.
The patent statute 35 USC 101 tells us that a patent can be given to any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof is eligible for patent protection.”
That means, your idea must be:
According to US law, “useful refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.”
If your idea can’t prove to be useful, whether that means it makes your customer’s life easier, faster, cheaper, or brings any type of tangible result, you can’t patent it.
Novel basically means no one has ever patented before. As the statute goes:
“An invention cannot be patented if:
- The claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” or
- The claimed invention was described in a patent issued or in an application for patent published or deemed published , in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.”
Basically, if your idea has existed before or has been patented, you can’t patent it. For example, you couldn’t patent a cappuccino or a frappuccino because, in the former case, they’ve existed for a long time, and in the latter case, because they already exist and have been patented.
Non-obvious means that it can’t be “an oral presentation at a scientific meeting, a demonstration at a trade show, a lecture or speech, a statement made on a radio talk show, a YouTube™ video, or a website or other online material.”
That means, you can patent anything that’s real—a blog post or a Powerpoint presentation that mentions your idea can’t be patented.
As a rule of thumb, the more useful, novel, and non-obvious your idea is, the higher the likelihood of being patentable.
Step 4: Submit the Patent Application
A complete patent application (RPA) should contain the elements listed below:
- A patent application form
- The appropriate fees
- An application data sheet (see 37 CFR § 1.76)
- The product’s specifications
- Drawings (when necessary)
- An executed oath or declaration (more information in here)
Basically, you want to describe your invention and highlight its advantages with the most amount of detail you can. You want to explain how your idea fills a market need.
As you can see, that includes gathering and submitting a lot of documentation, so be sure to meticulously track your progress and save any drawings, specs, modifications, ideas, etc., and gather them up to strengthen your case.
Step 5: Wait for the Patent
After you file your application, do not expect a quick response from the USPTO. It can take a year or longer before you hear back, especially if there are other inventions similar to yours.
When you do receive a response, it most likely won’t be an approval. A common reason for denial will be that your idea has too much in common with previous inventions. Maybe they will consider it’s not as useful nor novel or that you didn’t describe it with enough detail.
Whatever the case, when you get a denial, your attorney will have to work with you to address the issue at hand and resubmit the patent a second (or third) time.
How Much Does a Patent Cost?
The patent filing fees can range between $75 for “micro-entities,” which I mentioned before, to $10,000 for certain submissions. To that, you need to add:
- Patent search fees
- Research fees
- Post-allowances fees
(A detailed USPTO’s fees list can be found here.)
What’s more, you need to include your attorney’s fees, which can quickly rise to the tens of thousands or more.
Overall, if you have a one-member corporation, or one with few people in it, you can expect to pay the smaller spectrum of the fees, which can go up to $300. But if you add all the other costs I’ve just mentioned, the total costs can go up to $5,000 or more.
It’s hard to say beforehand what those costs will be; it’s best you talk to people who have patented ideas already or talk with an patent attorney so they can give you a better estimation.
Given these costs, an entrepreneur may wonder whether it makes sense to pay for such an expensive procedure. I asked patent attorney Michael Cohen about the ROI of a patent, and he said:
The ROI is not a one size fits all answer. In some cases, depending upon the industry and the invention, the ROI of the patent may be more or less than in others.
For example, with most startup companies, a patent application will be necessary not only for future enforcement reasons, but also as a prerequisite for most investors in their evaluation of the value of the invention.
At the end of the day, the decision to bear the costs of the patent should be seriously taken into consideration before you decide to start the filing process.
How to Enforce Your Patent
You got your patent. Now what? An important aspect of having a patent is that you can enforce it if someone violates it.
If you have found someone is using your product—or the idea behind it—without your consent, you can start with a cease-and-desist letter, but if the person who’s violating your patent doesn’t stop, you will have to open a patent infringement case. Because patent infringement isn’t a crime, you will have to start a civil lawsuit in a federal civil court.
You would be the “plaintiff,” and the infringer would be the “defendant.” As a plaintiff in a patent case, you will hire a patent litigator to represent you. Your patent lawyer won’t be able to help you as they only work on submitting, not enforcing.
Just like your patent submission, a patent infringement case can be lengthy and expensive. The good news is that you can make your money back from the money invested in creating and patenting your product.
How to Patent Your Idea If You’re Not a US Citizen
As I said before, this guide applies only to US-inventors. If you aren’t a US resident or citizen, the law in your country will greatly vary.
To help you get started with your patent filing process, here are some pages full of information on the subject:
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After reading this guide, you may be thinking that filing a patent is too complicated and expensive for you. Before you make a decision, remember this:
If you believe the licensing of your idea is worth the money, or if your customer research has shown you people desperately need your product, filing a patent could be a good idea.
On the other hand, if you’re getting the patent to show off or get some social proof behind your brand, it’s probably not be the best decision.
The process will be exhausting, expensive, and time-consuming. But, under the right circumstances, it can be worth your while.
Are you thinking about filing a patent? If so, what are your main concerns or doubts about this process? Let us know your questions in the comments below!