How Patents Work: Qualifications and Filing Procedure

Wright brothers plane
Wright brothers aeroplane, patented plans, 1908, drawings by W.B. Robinson from Wright Brothers' specification in the Patent Office. Apic / Getty Images

What is a patent?

A patent for an invention is the grant of property rights to the inventor by the government. It is the right to exclude others from making, using, offering for sale, or selling the invention in the country in which the patent is filed. The International treaty provides for patents to be recognized and protected in most countries, although enforcement often presents a major challenge.

What is patentable?

Patents are granted for the design of an original invention. Most commonly, this is for the plans for some sort of physical device, but increasingly it has been used in recent years to protect an original computer algorithm, such as Google's search results ranking techniques, or even a business model, such as Priceline's "reverse auction" model for having consumers make an offer for services such as airline flights and hotel service and the providers then choosing whether or not to meet the price bid.

The U.S. Patent and Trademark Office (USPTO) issues three kinds of patents: utility patents, design patents, and plant patents. Utility patents are by far the most common type of patent issues, and may consist of one of the following five categories:

  • a process or method for producing a useful, concrete, and tangible result (e.g., computer software, a new e-business model, a process for manufacturing something previously made by hand)
  • a machine (e.g., something with moving parts or circuitry, such as an engine, a new kind of printer, etc.)
  • an article of manufacture (e.g., garden tools, containers, a tire)
  • a composition of matter (shampoo, soft drinks, a drug)
  • an improvement of an invention in one of the above categories

In order to qualify, the idea must be:

  • useful (no matter how trivially)
  • novel (significantly different from previous inventions)
  • non-obvious (to someone familiar with the technical field of the invention)

A design patent can be issued for any design that is non-functional but still novel and nonobvious, such as a distinctive perfume bottle or a car body. A plant patent is issued on new plants that are novel and nonobvious, such as a new strain of roses.

What is non-patentable?

Some ideas can't be patented, no matter how novel and nonobvious they may be. Examples include:

  • anything occurring naturally, such as a mathematical formula or a newly discovered species
  • processes done entirely by human motor coordination, such as an exercise routine or surgical procedure
  • inventions only useful for illegal purposes
  • printed matter that has no unique shape (this is covered by copyright, not patents)
  • non-operable inventions, such as perpetual motion machines (which are assumed to be non-operable because they violate certain basic scientific principles)

How do I prepare to obtain a patent?

Patents are not granted automatically. Before you file a patent, there are a few things you must do to ensure a successful patent application.

First and foremost, document everything!

The patent application must be extremely detailed. You have to be able to show how your invention works, so you may need to test and build a prototype. Also, keep careful records of any discussions you have with other people regarding your invention, as well as its first use. Sign and date the entries and have two reliable witnesses sign also.

You must also be sure your invention qualifies for a patent. Does it meet all of the qualifications above? In order to be certain, you will have to do a patent search for similar inventions and explain how yours differs substantially. This involves searching public patent databases, as well as publications like scientific and technical journals, to find related inventions.

Do I need a lawyer?

You do not have to have a lawyer in order to obtain a patent, although it certainly increases your chances of a successful patent filing.

A patent attorney will check that you have all the necessary records in the proper format, verify that your idea qualifies for a patent, and perform a thorough patent search. These are all things you can do yourself with the proper information in hand, but an experienced attorney will likely be able to do it much faster.

How do I obtain a patent?

Procedures vary from country to country, but in the U.S., you can file a regular patent application (RPA) or a provisional patent application (PPA). A PPA allows you to claim patent pending status and protects you for a period of one year, allowing you to work with manufacturers, investors, and others to sufficiently develop the idea for a full patent.

A PPA only costs $80 and requires:

  • a detailed description
  • an informal drawing
  • a one-page cover sheet

An RPA requires additionally:

  • abstract or summary
  • itemized list of patent claims
  • Information Disclosure Statement (disclosure of all relevant prior related work known to you)
  • Patent Application Declaration (a statement that you are the true inventor and have disclosed all information you know that would be relevant to the examination of the application)

U.S. patents can be filed via mail or online at the USPTO Web site.