One of your top priorities as an inventor should be to protect your intellectual property. The United States Patent and Trademark Office exists to help you do just that.
Filing for protection of your intellectual property is one of the most critical steps to take as the inventor of a new product, material, process, or design. It’s also a complicated process that can take months or years to complete and requires a great deal of money, time, and specialized knowledge.
This guide will walk you through the basics of what you need to know on how to patent an idea in the United States, and it will help you to understand basic US intellectual property protections.
What is a Patent?
The United States Patent and Trademark Office (USPTO) is responsible for granting protections for intellectual property rights to inventions, trademarks, and service marks.
When you secure a patent from the USPTO, it grants you “the right to exclude others from making, using, offering for sale, or selling” (https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-2) your invention in the United States.
Patents allow you to control the ownership of your invention’s IP for a specified period. The period of validity is usually 20 years from the time of filing, but this may vary based on the details of the filing process. Keeping your patent up-to-date requires the payment of maintenance fees. We’ll discuss the details of filing, paying for, and maintaining registration later in this guide.
Any new and unique idea related to a specific product, process, or material may be patentable.
There are three categories of intellectual property protection granted for inventions by the USPTO:
- Utility Patents
- Design Patents
- Plant Patents
These apply to new products, manufacturing processes, and materials. A utility patent protects a specific product or process from being used or sold by others.
Let’s say you’re an automobile manufacturer, and you find that the machine you use for stamping out a particular metal component won’t work for your new car design. To fix this problem, you design a new device that can more easily accommodate the sophisticated design. A utility patent would prevent other car-makers from using that new piece of equipment without your permission.
USPTO may also grant utility patents for specific and unique improvements on an already existing product, process, or material.
This type protects new and original ideas for the appearance and aesthetic design of a useful product.
The weird thing about design patents is that you can only get one for a so-called “useful product,” but the design patent doesn’t cover what makes the product useful.
Design patents are granted in three cases, each of which can be vague when it comes to interpretation:
- A unique shape or configuration
- Unique and original surface ornamentation
- A combination of both form and ornamentation
If your invention is a living thing, you may need a plant patent to protect your IP.
Plant patents apply, perhaps obviously, to plants. More specifically, plant patents protect “anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.”
Plant patents apply to plants that are either invented or discovered in cultivated settings, and that can be identically reproduced by non-sexual means. In other words, you can’t protect a naturally-occurring plant that you find in the wild.
There are many restrictions and qualifications involved in patenting plants, and the process takes at least 18 months from the time of the initial filing to the time the protection is granted. (https://www.investopedia.com/terms/p/plant-patent.asp)
What is a Trademark?
Trademarks are like patents for a brand name.
When you produce or sell the same product as another company, brand differentiation is essential to maintaining your market share. A trademark protects your logo, company name, and other unique elements of your branding from being used by other companies.
Servicemarks do the same thing as trademarks, only for companies that offer services rather than physical products.
How is a Copyright Different from a Trademark?
Copyrights protect the content of a piece of writing, imagery, or other creative work. The USPTO does not issue copyrights, and copyrights don’t protect the subject matter of the works for which they’re issued.
As an inventor, it’s essential to recognize that securing a copyright for the description of your invention only protects the description and not the invention itself. Copyrighting a brand brief, similarly, does not protect your brand; it only protects the brief.
What Type of IP Protection Do I Need?
Each of these protections applies to a specific area of intellectual property, but adequately protecting your invention, company, or organization may require a combination of some or all of these types of protections.
Imagine you design a new airplane that works like no other plane before it.
The plane’s function is unique, but it also has an original shape that makes it look cool. You’ll want to apply for a utility or design patent to protect both elements of your new aircraft from use by others.
You’ll want to trademark the name of your new airplane design, as well as the logo of your company.
Once you begin production and marketing of your new aircraft, you’ll need to copyright your ads, white papers, and marketing materials.
How Much Does it Cost to Get a Patent?
The cost varies significantly depending on the specifics of your invention. You’ll also pay more or less depending on how much help you have in preparing the application.
There are three mandatory fees required to file and maintain the protection of your idea:
A non-refundable fee paid whether or not protection is granted.
The basic filing fee for an application filed electronically is $300.00. Any exceptional circumstances or considerations will increase the cost significantly.
Search and Examination Fees
These fees cover the cost of research that USPTO must do to verify the validity of your application.
The minimum search and examination fees for a basic utility application will be $660.00 for search and $760.00 for examination.
The USPTO charges maintenance fees at 3.5, 7.5, and 11.5 years after the first issue of protection.
The maintenance fees are progressively higher at each interval. At 3.5 years, you’ll pay $3,600. At 7.5 years, the fee increases to $3,600. The final maintenance fee at 11.5 years is $7,400.
Is Your Idea Patentable?
Before beginning your application, you should take some preliminary steps to avoid wasting your time and money on submitting an idea that either isn’t patentable or has already been submitted by another inventor.
How to Search for an Existing Patent
One of the most important things to do before beginning the application process is to search for existing inventions related to yours. The USPTO.gov website provides tools for exploring their database back to 1790.
How to Find Out if Your Idea is Patentable
While it’s relatively easy to find existing patents based on keyword terms, locations, dates, and tons of other specific filters, analysis of existing inventions is more complicated. Once you find an existing record related to your design, you need to determine whether it’s similar enough to your idea that it might cause problems.
Unless the originality of your idea is undeniable, you may want to hire a patent researcher or lawyer to conduct this research for you.
If you want to do it on your own, here are the basic requirements to make sure your idea is patentable:
- Is it your idea?
- Is it unique?
- Is it useful?
- Is your invention non-obvious?
How to Patent an Idea Step-by-Step
Applying for intellectual property protections for an idea is a complex process that requires careful attention to detail and a firm understanding of IP law.
Steps to Apply for a Patent
1. Keep good notes
The more detailed records you keep as you develop your invention, the better.
If you take detailed notes, create schematics and diagrams, and record any other information about the project as you go along, you’ll be in good shape for preparing your application when the time comes.
Keeping good records will also be helpful if you need to defend your ownership of your idea in court. A long history of careful record-keeping will help you show the course of development for your idea, and what role you took in its invention.
2. Determine whether your idea qualifies (Patentable)
Ideas are great, but only certain types of ideas are eligible to be granted a patent.
First of all, you need more than just the basic idea. Securing protection for your idea requires that you to show detailed information on how your invention works and what it is used for.
During the application process, examiners will cross-reference your invention with existing patents to determine if someone else has already come up with your idea or something similar to it.
In patent attorney speak, this is called “prior art”. In other words, does your patent claim, or any part of it, conflict with other patents. You can still get a patent if part of your claim is not accepted, but other parts are.
Applying for the protection of an invention that isn’t eligible is nothing but a waste of your time.
3. Decide whether applying makes sense for you
The application process takes a lot of time and effort on your part. It’s also expensive.
Of course, you can (and probably should) hire a patent attorney to help you with the process, but even with that help the process is involved and will take months or years to complete.
It’s essential to be sure that you can afford the entire application process and the maintenance fees required to hold your patent once you have it. Otherwise, you’ll spend a lot of time and money for nothing.
4. Conduct a Thorough Search for Similar Ideas
Even if you’re able to show the utility and function of your idea, that’s not enough to make it worthy of a patent. You also need to confirm that your invention is both unique and authentically your own.
The application process requires you to swear to an oath stating that your invention is your work and that you believe it to be unique and original.
Before you begin applying, you should conduct a thorough search of the USPTO database to determine whether an existing record closely matches your idea. Finding a very similar or identical idea in the database is an obvious deal-breaker. Still, there are other places you might need to search before deciding to go ahead with your application.
Searching the USPTO database at USPTO.gov or using Google is a good start. You may want to look at databases in other countries as well, especially if you plan to do business internationally.
It can also be a good idea to search journals and industry publications for evidence of work similar to your own.
If someone else is close to releasing an invention very similar to yours, it might mean they’ve already begun an application to protect their intellectual property. In this case, it’s a good idea to do your due diligence by finding out what stage of the process your colleague/competitor is in.
One side-benefit of a thorough search is that you will likely find other inventions that are related to yours, even if they aren’t the same. Knowing about these will allow you to include information in your application about how your invention differs from existing solutions.
Patent searches are time-consuming, and it takes some experience and skill to perform them effectively. Hiring an experienced agent or intellectual property attorney to help with this stage of the process is the best way to make sure you conduct an effective search.
Attorneys are expensive, though. If you’re working on a budget and can’t spend the thousands of dollars it takes to hire a professional; it is possible to conduct your own search using USPTO.gov’s search features.
5. File Your Application
There are many, many variations on the basic application and different requirements for each different scenario and type of invention. The basic submission requirements are as follows.
A written document containing the specifications of your product or design to be patented
The United States Code says that the specification in a patent application.
“…shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.” (https://www.law.cornell.edu/uscode/text/35/112)
In other words, the specification describes what the thing is, how you make it, and how you plan to implement it in production.
The specification is a crucial portion of your application because it describes the specific ways in which your invention is different from other existing products or methods. If you don’t write a clear and complete specification, USPTO may reject your application.
A vague or incomplete specification will also set you up for trouble should you ever have to defend your patent in court.
Many inventors choose to hire a lawyer specializing in intellectual property law to write this portion of the application. We’ll talk about how to hire a patent lawyer in a later section of this guide.
Drawings of your Product or Design
Depending on how complex your idea is, creating drawings can be a significant part of the application process.
There are several essential requirements that your drawings must satisfy to be accepted by the patent office. These include the type of ink and size of paper used, acceptable drawing styles, requirements for the use of drafting implements, and much more.
To learn about all of the requirements for drawings, check out the drawing requirements listed on USPTO.gov. (https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-24)
An oath or declaration swearing the authenticity of your claim to invention
Protections are granted only to the legitimate inventors of a product or design. Your application must include a signed statement that you are the actual inventor. In most cases, your statement needs to be notarized or sworn in front of a patent office official.
Payment of all fees
Fees are due at the time of filing for most patents. The fee structure of the US Patent and Trademark Office is complicated, and there are many tiers, provisions, discounts, and other variations on fees.
How to Register a Trademark
Trademark registrations follow a similar pattern to patents, with a few crucial differences.
Remember that trademarks protect the name, logo, or other branding elements for a company or organization. If you want to protect the IP surrounding your actual invention, you’ll need to apply for a utility, design, or plant patent.
Choose a Good Trademark
Choosing the right name, phrase, or symbol to serve as your trademark is more than just a branding decision.
The USPTO only registers your trademark; they don’t enforce your claim to it. That means it will be up to you to defend your brand against infringement should someone else start using it.
There are two important considerations when choosing a trademark:
- Is the trademark valid for registration with the USPTO?
- How easy or difficult will it be to defend your IP if the trademark is contested?
Guidelines for choosing a valid and defendable trademark can be found in this video series from the USPTO (https://www.uspto.gov/trademarks-getting-started/trademark-basics/basic-facts-about-trademarks-videos).
Specify Your Format and The Goods or Services You Offer
Your trademark can take the form of stylized language, an image, or even a sound. When you apply for a trademark, you must specify the format of the mark on your application.
You’ll also need to specify what you’re planning to offer under the trademark. Whether you provide goods or services, an accurate description of your offering is essential to a successful application for a trademark.
Do a Trademark Search
It’s crucial to search to make sure no one is already using your mark or something similar to it. If the USPTO determines that your mark is too similar to an existing one, they will reject the application.
Even worse, if your mark is accepted and someone else thinks it is too similar to theirs, you might face legal action for infringement.
A great place to do a quick trademark search is Trademarkia
Determine Your Filing Basis
Your basis for filing is essentially a statement of what stage your use of the trademark is currently in. There are four bases for filing that you might use:
- Use in commerce: this means you are currently using the mark in active business.
- Intent-to-use: you have an intention to use the trademark in a new business operation in the near future.
- Foreign registration: use this basis if you’ve already been granted a trademark in another country and want to register the same mark in the U.S.
- Foreign application: use this when you are applying simultaneously for the same mark in another country, or have applied in another country in the last six months.
More information on choosing a basis for filing a trademark can be found at the USPTO website (https://www.uspto.gov/trademarks-application-process/basis).
Hire an Attorney (for people living outside the U.S.)
If you are living outside the United States, you must work with a U.S. licensed attorney who can represent you at the USPTO.
If you live in the United States, you aren’t required to hire an attorney to represent you. However, it’s still highly recommended to do so, given the intricacies of the application process and the potential legal ramifications.
File and Monitor Your Application
Once you file your application and pay your (non-refundable) application fee, the process can take quite some time. The USPTO recommends that you continue to check the status of your application at 3-4 month intervals to avoid missing a filing deadline to keep your application active.
Also, be sure to keep your contact information up-to-date and respond promptly to any communications.
Get Approved (or Denied)
There are a few stages involved in finalizing your trademark.
First, all objections (if any) from the examiner must be overcome. Once objections are dealt with, the trademark will be published in the weekly Official Gazette that announces all trademark registrations.
After publication, there is a period of 30 days during which anyone can file an opposition to the trademark. This is usually done when another person or company feels that your mark infringes on their IP.
If no opposition is filed, the application process proceeds.
File a Statement of Use Within Six Months
If you apply for a trademark based on intent-to-use, you must provide proof that you’re using the mark in active commerce within six months of receiving notice that the application was approved.
If you fail to prove that you’re using it, and you don’t apply for an extension, the application for a trademark will be abandoned, and you’ll have to start over at the beginning if you want to continue trying to register.
File Maintenance Documents to Keep Your Trademark
Even after you’ve been approved for an official trademark, you need to file documents to maintain the registration. Details of what documents you need to submit to keep your trademark registration active can be found here (https://www.uspto.gov/trademarks-application-process/filing-online/registration-maintenancerenewalcorrection-forms).
How to Find a Patent Lawyer
With the considerable level of complexity and all of the potential obstacles involved in filing for a patent or trademark, it’s a great idea to hire a professional to help you through the process. If you live outside of the United States, this is required even to begin the application process.
What makes a good patent attorney?
Patent attorneys are lawyers who specialize in intellectual property law surrounding patent application and defense. Intellectual property law is a big and complicated field, so it’s essential to look for an attorney who has experience in the particular type of industry or subject-matter related to your invention.
It is strongly suggested to talk to other attorneys or business leaders and ask them for a patent attorney reference. You get references and do as much “investigation” on a patent attorney before hiring them.
This will save you time and money in the long run. Remember, the patent process will take a long time anyway, maybe years. So, take your time finding the right patent attorney for your product before you give them the $5000 retainer which most of them ask for.
How Can a Patent Lawyer Help You?
If you’re applying for a trademark from outside of the United States, it’s required to work with a licensed attorney to represent you at the Patent Office. Otherwise, you don’t technically need an attorney to help you with the application process.
That said, applying for a patent or trademark is a complicated process that requires in-depth knowledge of intellectual property law and the nuances of the U.S. Code. Hiring an attorney is highly advisable unless you are already an expert at intellectual property law yourself.
Some of the primary functions that an attorney can help you with:
- Write and file patent applications.
- Advise applicants in dealing with infringement cases
- Provide in-depth industry knowledge and experience to help applicants create valid applications
How to Find a Patent Attorney
The USPTO provides a tool (https://oedci.uspto.gov/OEDCI/practitionerSearchEntry) that lets you search the database of approved patent attorneys. This is the easiest way to locate someone in your area who can represent you at the Patent Office.
The search tool has options for searching by name, business name, location, and a few other filters.
If you want to find attorneys who have lots of experience in your particular industry, or with inventions like your own, try searching for patents and looking up the attorneys who helped to file them. You can begin your search with the USPTO patent search tool, or Google Patent search (https://books.google.com/advanced_patent_search).
We hope you found this guide helpful and comprehensive. Come back to it often to help you navigate the challenging but rewarding journey to patent your idea.