Okay, say you have an idea in mind, and you’re ready to take the plunge and get yourself a patent. What happens now?
First of all, familiarize yourself with the basics. When entrepreneurs, inventors, and investors speak of “patents”, they are referring to a legal tool and right given by the United States Patent and Trademark Office (USPTO), which entitles exclusive ownership to a new or improved idea/process/product/system/invention. This exclusivity, then, effectively means that a patent is a right to sue. The patent prevents others from claiming, marketing, or profiting from the product without the patent holder’s authorization.
Patents – Recognize the Different Options Available
There are several basic types of patents. The first is a Utility Patent. The vast majority of patents are utility patents and are typically what people are referring to when expressing a desire to obtain a “patent”. These patents are issued to cover a “new and useful” product, process, or composition, or a unique improvement upon an existing product, process, or composition. The second is a design patent. Design Patents are typically used to protect the way a new or improved invention looks, rather than the way it actually functions. Designs patents protect the aesthetics of a given thing. An additional type of patent is a Plant Patent. Plant patents are used to protect the work of horticulturists and geneticists who create asexually reproduced plants (meaning, they engineered the plant themselves.) For plant patents to be viable, the genetically engineered plant must be sufficiently altered to render it novel in a meaningful sense of the word. PCT patents cover international trademarks and can be tremendously powerful for companies interested in taking their product/s to global markets. Lastly, Provisional Patents are often viewed as “place-holder patents” and provide a preliminary level of protection for a year at which point the provisional patent must be converted into a full utility patent.
Patents Must be New, Non-Obvious, and Useful
In order to apply for a patent, the inventor must propose a real-world effectuation – you cannot simply patent an idea. The inventor must demonstrate a real intention to develop the idea into a tangible, applied thing. You must also be either the actual inventor or co-inventor of the idea, the assignee of the idea by the inventor, or the legal representative of the inventor.
Once you’re ready to move forward, here are the basic steps to follow.
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Show your work! It’s important that you have documentation illustrating how you came up with the idea and how you developed it. Meticulously record your process in a notebook or a Word document (preferably with dates) so that you can show the evolution of your thinking and the work you put into developing the idea.
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Do your homework! Not everything can be patented, so before you move forward, you’re going to want to make sure your idea actually qualifies for a patent. In order to qualify, the idea/invention has to be new (either an entirely new idea, or a new improvement on an existing idea), non-obvious, and able to be put to practical use. Contact a patent attorney to run a patent search and make sure your idea isn’t too close to an existing or pending patent.
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Take it for a test run! Though not technically required, it is very strongly recommended that you make a prototype before filing for a patent. This will bring all of the documented work and research you have in your records to life for the patent review board, as well as potential investors. This step may also can also help you discover design problems that you can fix before you file your patent. Prototypes can be as simple as drawings, but it’s generally recommended that you invest in at least a 3D or virtually rendered model, and, if possible, a fully working model.
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Get your ducks in a row! Once you’re ready to start the application process, there are several factors you need to consider. One is cost. Patents can be fairly expensive, running anywhere from $5,000 to $15,000 (and more). Make sure you have the money available to you before commencing, so as to prevent potential snags and delays. For individual inventors/entrepreneurs/startups, this may mean seeking out investors who are willing to invest in your business. If you do not currently have the funds to proceed with a full utility patent, you may very well want to consider filing a provisional patent application. A provisional patent is a “lite-patent” that gives the inventor “patent-pending” status and prevents others from patenting the product, to be converted into a full utility patent after a year. Filing a provisional patent application gives you time to develop the product and gather the necessary funds for a non-provisional (or, regular) patent. Some inventors skip the provisional patent step, but others utilize it to aid development.
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File away! At this stage, it is time to file a Utility patent. This application must contain a “narrative section”, which means words, drawings, images, or prototypes that clearly describe the invention, demonstrate how it can be used, prove that it is different from other inventions currently patented or patent-pending, and explain exactly which aspects of the invention should be protected by a patent. You will also be required to sign an oath vowing that the invention is yours and your testimony about the invention is true.
Patents Must be New, Non-Obvious, and Useful
The process generally isn’t over once the Patent Application is filed. Once you submit your application, the USPTO begins its review. It then issues an opinion evaluating the viability of the patent and may send an Office Action detailing items in the patent application that need to be addressed and/or amended. Most of the time, the first office action will deny the patent. This isn’t a final denial! Rather, it just means you need to appeal and explain why the idea actually is patentable (which usually involves making changes to your application). If the examiner still denies your application, you can file another response or request a continued examination from the USPTO.
If your patent is approved, you will receive a Notice of Allowance, which clears you to receive the patent once you pay the associated fee.
In all, it generally takes around three years for the entire process to result in an approval.
Contact your Patent Attorney to learn more.
