Over the past decade, more than 500,000 patent applications have been filed each year with the U.S. Patent and Trademark Office (USPTO). This federal agency works to encourage people to patent their inventions to promote "the industrial and technological progress of the nation" and to strengthen the economy.
This article is an overview of the process for applying for a patent in the U.S. and internationally.
What Is a Patent?
A patent is the granting of property rights to an inventor and is issued by the USPTO. These rights, granted for 20 years, allow the owner to exclude others from making, using, and selling an invention or importing it into the U.S.
In the past, patents were granted to the person who was first to invent something. But a 2011 law, the Leahy-Smith America Invents Act, was enacted to bring the U.S. patent system in line with the rest of the world. The new system is a “first-to-file” system, meaning that the person who files first has the advantage.
Before You Patent Your Idea
There are several things you should take into consideration before applying for a patent, including answering the following key questions.
Is My Invention Patentable?
Patents must be both new and distinct from existing things, and they must be useful.
To be new, the invention must not be described, in public use, on sale, or available to the public, and no one else can have patented it before.
In addition, it must be obviously different from already existing items. For example, a change of color of an item isn’t distinctive enough.
To be useful, meanwhile, an invention must have a useful purpose and it must be able to operate to perform its intended purpose.
What Type of Patent Do I Need to Get?
There are three types of patents:
- Utility patents: The most common type of patent, utility patents are for new and useful processes, machines, articles of manufacture, composition of matter, or new and useful improvements
- Design patents: These patents are for new, original, and ornamental designs for an article of manufacture
- Plant patents: These patents are for the discovery and asexual reproduction of new and distinct varieties of plants (hybrids)
Does Anyone Else Have a Patent for This Invention?
You’ll need to do a patent search to find out if someone already has a patent for a similar product. The USPTO has a Seven Step Strategy for conducting preliminary patent searches.
To do a preliminary search, you can use the USPTO’s general search box on the main site and enter “CPC Scheme [plus keyword(s) describing invention].” The CPC classification scheme classifies types of products.
Get Help From a Licensed Patent Attorney
The patent search process is complicated because you may need to search both U.S. and international patent databases. But the patent application process can be even more complex, difficult, and expensive, so it might be beneficial to consult with an attorney to help you through the process.
Preparing and Filing Your Patent Application
U.S. Patent Types
Some inventors may choose to file a provisional patent application on a utility or plant patent, but provisional applications aren’t available for a design patent. The provisional patent allows the inventor to establish their filing date without having to disclose any information or give any claims, oaths, or declarations. It also allows the use of the term "Patent Pending" on a description of the invention. The inventor then has up to 12 months to apply for a nonprovisional patent.
The other option is a nonprovisional application, which can be filed with or without having filed a provisional application. You’ll need to file the correct nonprovisional application for the type of patent (utility, design, or plant).
If you convert a provisional application directly into a nonprovisional application, the 12-month "patent pending" time for a provisional patent is included in the 20-year limit. But if you file a nonprovisional application and claim the benefit of the provisional application, the time limit is extended.
If you plan to do business with your patent overseas, you’ll need to get an international patent. Patent applications must be filed in every country where you want to protect the patent. There are two ways to get an international patent:
- Apply directly with each country. The World International Property Organization has a list of intellectual property offices in countries.
- File an international patent application in multiple countries through the Patent Cooperation Treaty.
What To Include in a Patent Application
Even if you have a patent attorney to guide you through the process, you may want to handle some of the work on writing your patent application. Here are three important items you will need to include, courtesy of the USPTO:
- Description: Provide a detailed description and explanation of the invention in full, clear, concise and exact terms. This is the place where you set your invention apart from other inventions and write a description that’s understandable to anyone skilled in the art or science to which the invention pertains.
- Statement of Claims: You must state your claims to the patent to point out and distinctly define the scope of protection of the patent. A patent claim is basically a definition of what you are patenting. It follows the basic form of definitions, using a general introductory term, then a description of what it includes; for example, "an umbrella including a gutter on the back side to let the rain run down away from the user." (This is not a real patent application.) The USPTO says, "Whether a patent will be granted is determined, in large measure, by the scope of the claims."
- Drawings: Most patent applications contain drawings to help the USPTO and the public understand what is to be patented. The drawings must show every feature of the invention as described in the claims.
Filing Your Patent Application
The USPTO wants inventors to file patent applications electronically using its EFS-Web system. If you file by mail or hand-delivery, you must pay an additional fee, called a "non-electronic filing fee," of $400 (reduced by 50% to $200 for applicants with "small entity" status).
The EFS-Web system is set up to be easy to use and requires applicants to attach PDF files to submit parts of the application. You will need to register first to get an account.
Frequently Asked Questions (FAQs)
How much does a patent application cost?
The cost of a patent application varies based on a number of factors, including application fees, which depend on:
- Type of application (provisional or nonprovisional)
- Type of patent (utility, design, or plant)
- Size of your business (small and micro businesses pay reduced fees)
You may also need to pay fees for search, examination, drawing, and international filing. Also, you will need to pay attorney fees, which are separate. Here’s a table of current patent fees from the USPTO.
I don’t have money to hire an attorney. Are there any alternatives?
You can file your patent application on your own using the USPTO’s Pro Se (by oneself) Assistance program. If you have limited financial resources, you may be able to get an attorney pro bono ("for free" ) through a law school clinic at a participating law school or the Patent Pro Bono Program.
How do I protect my patent once it has been approved and registered?
The most important thing you need to know about protecting your patent is this: U.S. intellectual property law can help you defend a claim, but once you own a patent, you alone are responsible for enforcing your rights.
If you think your patent is being violated, contact an attorney. You may also seek help from the National Intellectual Property Rights Coordination Center, a federal agency under the Department of Homeland Security.