How to Get a Patent
To get a US patent, your invention must be new, non-obvious, useful and properly described. Most inventors do a prior art search, often file a provisional application to secure an early filing date, then file a nonprovisional application within 12 months. A USPTO examiner reviews it, usually over a period of years, before allowance. Utility patents last 20 years from filing. Small and micro entities pay reduced fees.
A patent gives the owner the right to exclude others from making, using, selling or importing the invention for a limited time. In exchange, the invention is publicly disclosed.
Types of patents
| Type | Protects | Term |
|---|---|---|
| Utility | Processes, machines, manufactures, compositions of matter, and improvements (35 U.S.C. 101) | Generally 20 years from the earliest nonprovisional filing date (35 U.S.C. 154) |
| Design | The ornamental design of a manufactured item | 15 years from grant |
| Plant | New, asexually reproduced plant varieties | 20 years from filing |
What can be patented
The invention must be:
- Patent-eligible: not an abstract idea, law of nature or natural phenomenon by itself
- Novel: not previously disclosed (35 U.S.C. 102). The US gives inventors a one-year grace period for their own disclosures, but many countries do not.
- Non-obvious to a person of ordinary skill in the field
- Useful
- Fully described so others can make and use it
Steps
- Document the invention with dated notes, drawings and prototypes.
- Search prior art in patent databases and publications.
- Consider a provisional application, which is cheaper, establishes a filing date and lets you use "patent pending," but expires after 12 months unless you file a nonprovisional application.
- File the nonprovisional application with specification, claims, drawings, an oath or declaration, and fees.
- Examination: an examiner reviews the claims; most applications receive at least one rejection ("office action") that you respond to by arguing or amending.
- Allowance and payment of the issue fee.
- Maintenance fees for utility patents at 3.5, 7.5 and 11.5 years.
The USPTO describes each stage in its patent process overview.
Costs and timing
Government fees depend on entity size; small entities and micro entities qualify for substantial discounts. Attorney or patent agent fees usually make up most of the cost. Examination commonly takes a few years; expedited options exist for an extra fee.
Do you need a patent attorney?
Not legally, but claim drafting determines the strength of the patent. Only registered patent attorneys and agents may represent others before the USPTO.
Protect it before filing
Use NDAs when sharing; see NDAs. Public disclosure can destroy foreign patent rights.
International protection
A PCT application can preserve rights in many countries.
Talk to an IP lawyer who is a registered patent attorney.
Sources
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This article is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Laws differ by state and change over time; talk to a licensed attorney in your state about your situation.